Both the joint venture and the partnership must ultimately rest upon a contract, express or implied, between the parties who must, as between themselves, have intended to form a partnership or joint venture. LSA-Civil Code art. 2805, Glover v. Mayer, 209 La. 599, 25 So.2d 242 (La.Sup.Ct., 1946); Williams v. Ralph R. Miller Shows, 15 So.2d 249 (La.App., 1st Cir., 1943); Porter v. Cooke, 127 F.2d 853 (5th Cir., 1942); and Shushan Bros. Co. v. Drennan Hillcoat, 158 La. 480, 104 So. 214 (La.Sup.Ct., 1925). A sharing in the profits of the enterprise is essential to the relationship of joint venture or partnership as is the sharing of control or management of the affairs of the enterprise.
One of the strongest points made by the Government is that the mere sharing of profits and losses is not enough to constitute partnership. The following host of cases is given, and in the number, very properly, as the Louisiana law is to guide us, there are many Louisiana cases: Utter v. Irvin, 5 Cir., 132 F.2d 416; Sugg v. Hopkins, 5 Cir., 11 F.2d 517; Boutte v. R.L. Roland Son, 15 La.App. 530, 132 So. 398; Leonard v. Sparks, 109 La. 543, 33 So. 594; Shushan Bros. Co. v. Drennan Hillcoat, 158 La. 480, 104 So. 214, 216; McWilliams v. Elder, 52 La.Ann. 995, 27 So. 352; Halliday v. Bridewell, 36 La.Ann. 238; Lipscomb v. State, 148 Miss. 410, 114 So. 754; and especially is this urged by the Government where, as is alleged here, a sharing of profits and losses is only a means of compensation: Meehan v. Valentine, 145 U.S. 611, 12 S.Ct. 972, 36 L.Ed. 835; Ætna Ins. Co. v. Murray, 10 Cir., 66 F.2d 289; Demary v. Royal Indemnity Co., La.App., 182 So. 389; Daigle v. Crescent City Garage, La.App., 180 So. 831. Two cases in particular have established quite definitely the Louisiana law on the subject because there is an examination in them of all of the previous jurisprudence.
Art. 2814 of the Civil Code; Amacker v. Kent, 144 La. 545, 80 So. 717. Thirdly, the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest. Art. 2808 of the Civil Code; Belden v. Read Hunt, 27 La.Ann. 103; Chaffraix Agard v. Lafitte Co., 30 La.Ann. 631; Shushan Bros. Co. v. Drennan Hillcoat, 158 La. 480, 104 So. 214. Even if the parties call their relationship a partnership, and agree that they gave their mutual consent to form it, it will not be considered a partnership, as between the parties, unless it is evident that the other two factors result from their agreement.
Article 2805 of the Revised Civil Code is explicit as to the necessity of the consensual element in the creation of a partnership. The jurisprudence under that Article has been admirably summarized in the recent case of Glover v. Mayer, 209 La. 599, 25 So.2d 242, quoting the earlier decisions of Chaffraix Agar v. Lafitte Co., 30 La. Ann. 631; Collom v. Bruning, 49 La.Ann. 1257, 22 So. 744; Shushan Bros. Co. v. Drennan Hillcoat, 158 La. 480, 104 So. 214; Reel v. Brewer, La.App., 6 So.2d 99. We reiterate our holding in the Glover case that "for persons to be considered as partners inter sese there must exist an intention to establish that relationship."
" Civil Code, Article 2809. And for determining whether a certain business arrangement constitutes a partnership this court in Chaffraix Agar v. Lafitte Company, 30 La.Ann. 631, announced: "* * * The true, final, satisfactory, conclusive test is in the answer to the question: What was the real meaning and intention of the parties, as expressed in their contract, whether verbal or written? If they intended to create a partnership, they will be treated as partners inter sese and with respect to third persons: If they did not intend to create that relation, but merely to divide the profits, or to share profits and losses, in a speculation or adventure, they will not be partners inter sese, nor will they be liable as such. * * *" The importance of an intention to create a partnership is also pointed out in Collom v. Bruning, 49 La.Ann. 1257, 22 So. 744; Shushan Bros. Company v. Drennan Hillcoat et al., 158 La. 480, 104 So. 214, Reel v. Brewer et al., La.App., 6 So.2d 99, and Sheridan v. LeQuire, La.App., 15 So.2d 118. The instant arrangement, according to the record, contained the several essentials of a partnership mentioned in the above quoted codal articles.
The mere fact that two persons may both be interested pecuniarily in the same business venture, and that each gave to it equally his time and attention, by no manner of means carries with it, as a matter of law, the conclusion that they stand towards each other as partners. * * *" In Shushan Bros. Co. v. Drennan Hillcoat et al., 158 La. 480, 104 So. 214, 216, the court referred approvingly to the Chaffraix Agar decision and observed: "* * * To hold, under this state of facts, that the presumption of partnership, arising from a mere agreement to participate in the profits, is sufficient to establish a partnership, in the absence of intention between the parties to form a partnership, and in the absence of proof between the parties of a community of goods and proprietary interest therein, is clearly erroneous."
Art, 2814, of the Civil Code; Amacker v. Kent, 144 La. 545, 80 So. 717. Thirdly, the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest. Art. 2808 of the Civil Code; Belden v. Read Hunt, 27 La.Ann. 103; Chaffraix Agard v. Lafitte Co., 30 La. Ann. 631; Shushan Bros Co. v. Drennan Hillcoat, 158 La. 480,104 So. 214. Even if the parties call their relationship a partnership, and agree that they gave their mutual consent to form it, it will not be considered a partnership, as between the parties, unless it is evident that the other two factors result from their agreement.
Art. 2814 of the Civil Code; Amacker v. Kent, 144 La. 545, 80 So. 717. Thirdly, the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest. Art. 2808 of the Civil Code; Belden v. Read Hunt, 27 La.Ann. 103; Chaffraix Agard v. Lafitte Co., 30 La.Ann. 631; Shushan Bros. Co. v. Drennan Hillcoat, 158 La. 480, 104 So. 214."
Art. 2814 of the Civil Code; Amacker v. Kent, 144 La. 545, 80 So. 717. Thirdly, the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest. Art. 2808 of the Civil Code; Belden v. Read Hunt, 27 La. Ann. 103; Chaffraix Agard v. Lafitte Co., 30 La.Ann. 631; Shushan Bros. Co. v. Drennan Hillcoat, 158 La. 480, 104 So. 214. Even if the parties call their relationship a partnership, and agree that they gave their mutual consent to from it, it will not be considered a partnership, as between the parties, unless it is evident that the other two factors result from their agreement.
Art. 2814 of the Civil Code; Amacker v. Kent, 144 La. 545, 80 So. 717. Thirdly, the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest. Art. 2808 of the Civil Code; Belden v. Read Hunt, 27 La. Ann. 103; Chaffraix Agard v. Lafitte Co., 30 La. Ann. 631; Shushan Bros. Co. v. Drennan Hillcoat, 158 La. 480, 104 So. 214. Even if the parties call their relationship a partnership, and agree that they gave their mutual consent to form it, it will not be considered a partnership, as between the parties, unless it is evident that the other two factors result from their agreement.