California Civil Jury Instructions (CACI)
A partnership and each of its partners are responsible for the wrongful conduct of a partner acting within the scope of his or her authority.
You must decide whether a partnership existed in this case. A partnership is a group of two or more persons who own a business in which all the partners agree to share the profits and losses. A partnership can be formed by a written or oral agreement or by an agreement implied by the parties' conduct.
Directions for Use
This instruction is not intended for cases involving limited liability partnerships.
Sources and Authority
Corporations Code section 16202 provides, in part: "[T]he association of two or more persons to carry on as coowners a business for profit forms a partnership, whether or not the persons intend to form a partnership."
Corporations Code section 16305(a) provides: "A partnership is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership."
"Under traditional legal concepts the partnership is regarded as an aggregate of individuals with each partner acting as agent for all other partners in the transaction of partnership business, and the agents of the partnership act as agents for all of the partners." (Marshall v. International Longshoremen's and Warehousemen's Union (1962) 57 Cal.2d 781, 783 [22 Cal.Rptr. 211, 371 P.2d 987].)
"[T]he partners of a partnership are jointly and severally liable for the conduct and torts injuring a third party committed by one of the partners." (Black v. Sullivan (1975) 48 Cal.App.3d 557, 569 [122 Cal.Rptr. 119], internal citations omitted.)
"In determining whether a relationship such as that of partners has been created, the courts are guided not only by the spoken or written words of the contracting parties, but also by their acts." (Singleton v. Fuller (1953) 118 Cal.App.2d 733, 740-741 [259 P.2d 687], internal citation omitted.)
"It is essential, however, to the existence of a partnership that there be a community of interest and an agreement to share jointly in the profits and losses resulting from the enterprise." (Sandberg v. Jacobson (1967) 253 Cal.App.2d 663, 668 [61 Cal.Rptr. 436], internal citation omitted.)
9 Witkin, Summary of California Law (9th ed. 1989) Partnership, § 44
1 Levy et al., California Torts, Ch. 8, Vicarious Liability, § 8.06 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 427, Principal and Agent (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee (Matthew Bender)
1 Bancroft-Whitney's California Civil Practice (1992) Torts, §§ 3:36-3:37
(New September 2003)