ST. VICTOR vs. DAUBERT, 9 La. 314

Marlin, J. delivered the-opinion of the court. The plaintiff -and another person being partners in trade, established a store and engaged the defendant at a salary of fifty dollars per month, to attend to the business of the store and sale of the goods, and further promised him one fourth part .of the profits that-might be made. The plaintiff afterwards purchased the interest of. his co-partner, and finding the concern unprofitable, shut up the store, after having made a sale of the goods on hand. The defendant was charged with the collection of the debts.

After having collected the sum of one thousand seven hundred and seventy-eight dollars, the defendant retained it on the ground that he had a right to do so, until the plaintiff accounted to him and paid over his share of the profits. Between the partners of a commercial firm and a clerk, who in addition to his monthly salary, is to receive a share of the profits, there is no partnership created.

A clerk who is allowed a monthly salary and a share of üie profits, is not thereby constituted a part-Si ''"the0™™ farther than the express or implied consent authorise himTS So, clerk, share of the pro-cM°pitnS*ipj lvho, collects funds of the firm, cannot rep^etene™ ""that tl.ieJ’ ®r? his share oi the profits. He may be and'required™) ti)us“'|ceeiyg¿1™ him. The present suit was instituted to recover the sum thus remaining in the hands of the defendant.

The plaintiff’s demand is resisted, on an allegation that the parties were co-partners, and neither of them could sue the other, except for a settlement and recovery of the balance. The Parish Court dismissed the suit as premature, and the plaintiff appealed. Whether a participation in the profits of a commercial house creates a liability to the creditors of the concern, and to what extent or amount, is a question which this case does hot appear to present.

Between the partners of a commercial house and a clerk who, in addition to his monthly salary, is allowed, as a further •stimulus to his industry, a share of the profits, we have no . i i * m i . hesitation in deciding, that this allowance does not constitute him a partner. It gives him no additional control over the ■affairs of the partnership, nor does it authorise him to bind the 11 ‘house, or firm, further than by the express consent of the partners, or an implied consent resulting from the nature of his employment.

The person thus employed and rewarded, has no right to ■retain the funds of the house, which employed him to collect them. They must be supposed, until the affairs of the part- : p ’ . r ■nership are liquidated, to be provided for, and required to meet •its engagements, and afterwards to reimburse the partners for their advances, before a division of the profits .is made. J 1 it is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled, avoided and ■reversed, and the cause remanded for new proceedings, the appellee paying the costs of the appeal.