The words in the first paragraph of the agreement, “which he is hereby acknowledged to have done,” indubitably establish the fact that the defendant Dean was only in the first instance to furnish the capital and procure a stock of goods necessary to commence and carry on the business, and that thereafter, as further supplies of goods were needed, the same were to be purchased and paid for out of the proceeds of the' goods already sold and the capital already furnished. The words quoted imply, as plainly as language can, that this stipulation on the part of Dean had been fully executed by him at the time the agreement was drawn up and signed, and that he was not, thereafter, to furnish any capital or to procure any goods at his own individual expense, or upon his sole credit or otherwise. It follows, as a necessary consequence of this, that all further supplies of goods requisite to keep up the stock and to carry on the business were to be purchased by Smith, or at least were to be paid for by him out of the proceeds of sales previously made; and there is nothing in the other provisions of the agreement from which any different intention is to be inferred. On the contrary, they all seem very strongly to show that such was the *336understanding of the parties with regard to the course of business to be pursued.

Such being the obviously true construction of the agreement, all foundation for the claim of the defendant Smith, that Ms co-defendant Dean was to purchase and pay for the goods sold by the plaintiffs, is removed, as also all ground of defense on the part of Smith to this action. The business having been carried on by Smith in his own name, and for Mmself, and not as agent or employee, and he having been interested in and entitled to receive and retain one-half of the accruing profits, as^ such, and not merely as wages or by way of specific compensation or payment for his labor and services, he and Dean were partners as to third parties, whatever their relations may have been as between themselves. See Parsons on Partnership, pp. 70, 71, and note, and pp. 88 to 93, and notes.

It follows that the judge below erred in his instructions to the jury, and that the judgment must be reversed, and a venire de novo awarded.

By 1¡he Court. — Ordered accordingly.