“An agreement to share the profits and losses of an adventure is an essential element of a partnership.” Raymond S. Roberts, Inc. v. White, 117 Vt. 573, 97 A.2d 245, 248 (1953). Where the rights in question are between the alleged partners only, “there must be a manifestation of an intent to be so bound.” Harman, 510 A.2d at 164.
Even if a third party is unaware that the partner is acting on behalf of the partnership, as long as that partner acts with actual authority in order to benefit the partnership, the partnership is bound by whatever agreement is made with that third party. E.g., Seybolt, 38 B.R. at 127; Builders Steel Co. v. Hycore, Inc., 877 P.2d 1168, 1173 (Ok.Ct.App. 1994), cert. denied (June 22, 1994); Raymond S. Roberts, Inc. v. White, 117 Vt. 573, 97 A.2d 245, 248 (1953); Levy v. Iavarone, 9 N.J.Misc. 450, 154 A. 527 (1931). This is an application of the agency rule that undisclosed principals are liable for agreements entered into by their agents acting within their actual authority.
" Id.; see also Greene v. Brooks, 45 Cal. Rptr. 99, 102 (Cal. Ct. App. 1965) (similarly recognizing that "[t]he ultimate test of the existence of a partnership is the intention of the parties to carry on a definite business as co-owners"). "This intention may be shown by their express agreement or inferred from their conduct and dealings with one another." Raymond S. Roberts, Inc. v. White, 117 Vt. 573, 577 (1953); see also Brooks, 45 Cal. Rptr. at 102 (same). The trial court recognized that plaintiff had personally participated in some aspects of opening up and running the business at its new location—the main factor defendants rely on to argue that plaintiff thereby entered into an implied partnership.
Concra Corp., supra, 141 Vt. at 174, 446 A.2d at 365. Where the issue hinges on the rights of the parties inter se only, however, there must be a manifestation of an intent to be so bound. Raymond S. Roberts, Inc. v. White, 117 Vt. 573, 577, 97 A.2d 245, 248 (1953). The court in this case found that plaintiff repeatedly attempted to convince the defendant to put real estate that he purchased in both of their names and that defendant consistently refused to do so.
Again, this rule has common law precedent. See: Raymond S. Roberts, Inc. v. White, 117 Vt. 573, 97 A.2d 245, 248 (1953); Moore v. DuBard, 318 Mich. 578, 29 N.W.2d 94 (1947); Schleicker v. Krier, 218 Wis. 376, 261 N.W. 413 (1935). According to Hults, he agreed to pay Tillman one-third after all his other bills were paid. If so, this indicates a sharing of profits under Miss. Code Ann. § 79-12-13(4).
The 1946 deed, however, only reserved to the grantors the right to designate the width of the right-of-way in the first instance. The grantors designated the width of the right-of-way when the company treasurer, an agent of the partnership acting within the apparent scope of his authority, acceded to Mr. Levin's 25-foot claim in 1975. See Raymond S. Roberts, Inc. v. White, 117 Vt. 573, 578, 97 A.2d 245, 248 (1953) (each partner is "an agent of the partnership for the purpose of its business."). See also 11 V.S.A. § 1201(a) of the Vermont Uniform Partnership Act, which provides:
It makes no difference that the parties may not have known that their association created a partnership. Raymond S. Roberts, Inc. v. White, 117 Vt. 573, 577, 97 A.2d 245, 248 (1953). Finally, the defendant claims that the trial court erred in holding the parties jointly and severally liable on the basis of a tort committed by a partner.
There being no dispute as to Sugar River's status as a partner of Battleground or as to Sugar River's authority to bind Battleground to such a contract, the next question is whether the act was for apparently carrying on Battleground's business. The trial court's findings stand in the way of concluding that Sugar River's act was for carrying on Battleground's business. It was the trial court's view of the facts that the letter of credit was obtained by Sugar River for the benefit of its corporate principal Whitecaps in order for Whitecaps to fulfill its commitment to underwrite the purchase of the first five condominium units. Under Raymond S. Roberts, Inc. v. White, 117 Vt. 573, 578, 97 A.2d 245, 248 (1953), moreover, the trial court was entitled, under such circumstances, to conclude that the plaintiff had made an election to look to Whitecaps, rather than to Battleground. The plaintiff argues that there is no factual support for this view of the evidence.
The brief of the defendant indicates that the first question he wishes us to consider is the propriety of the overruling of his demurrer, filed Feb. 28, 1959, by the Court of Chancery, although it would seem that the defendant wishes us to consider it as a motion to dismiss. But, if so considered, it would have been premature, being made prior to the findings of fact being filed, which date of filing was June 5, 1959. Roberts Inc. v. White, 117 Vt. 573, 575, 97 A.2d 245. Treating the pleading as a demurrer the record shows that it was filed after the hearing on the merits of the case on the date of Dec. 3, 1956. A demurrer must be brought forward for hearing before the case is heard on the merits, otherwise it is waived.
A general statement that error was committed, without citing authorities, stating grounds and supporting the point by argument is inadequate briefing and merits no consideration. Bigelow v. Denis, 119 Vt. 21, 25, 117 A.2d 261. Furthermore, the motion was premature since it was made before findings of fact were made and filed. Montpelier v. Bennett, 119 Vt. 228, 230, 125 A.2d 779, and cases cited; Roberts, Inc. v. White, 117 Vt. 573, 575, 97 A.2d 245, and cases cited. The motion was also without merit.