Opinion of the Court.

amount. Subsequently the latter company filed an intervening petition or complaint in the general winding-up action, setting forth the names of some sixty shareholders of the SeymourSabin corporation, and the amounts of their holdings of stock, and praying that the court make those named, and all other persons who might subsequently be found to be shareholders, parties to the action; require them to answer the petition; and enforce the liability in respect of stock held by them which the petition claimed the constitution of the State imposed. It was also prayed that the court determine the amount of the assets of the Seymour-Sabin Company available for the satisfaction of the claims of creditors; the amount of its indebtedness; the number of shares of its capital outstanding between July 5, 1881, and May 10, 1884, during which time the indebtedness represented by the claims filed was incurred; the names of the various holders of stock between those dates; what shareholders were insolvent; what non-resident; what persons were entitled to share in the assets and to what extent; and the amount of any other indebtedness on the part of any of the defendants to the Seymour-Sabin Company.

The District Court made an order impleading the parties named as defendants in the action, and requiring them to enter their appearance and answer within a time limited. Among the numerous persons thus made defendants, the plaintiffs in error in this case were included, and they demurred to the intervening petition or supplemental complaint upon the ground, among others, that the facts stated were not sufficient to constitute a cause of action. The petition charged that defendants were liable upon their stock to the extent of a sum equal to the par value thereof for the debts of the SeymourSabin corporation under section 3, article 10 of the constitution of Minnesota, which provided: "Each stockholder in any corporation (excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business) shall be liable to the amount of stock held or owned by him."

The demurring defendants contended that this was a mere direction to the legislature of the State to impose such a liability and was not self-executing.

VOL. CXLV-39

Opinion of the Court.

The demurrers of plaintiffs in error and of other defendants were sent by order of the District Court to a referee to hear and determine, and make, report and file such order as might be proper. Consent by stipulation was given to the making and entry of this order, subject to the right, thereby reserved, "of either party to move, amend, plead over or appeal, as he or they shall be advised after notice of the order determining said issues: Provided, however, that this stipulation shall not be construed to be or operate as the waiver of any rights of any party or parties thereto or of any objection to the jurisdiction of said court which said party or parties now has or might now urge;" and this stipulation was signed by the attorneys for upwards of sixty defendants.

The demurrers were overruled with leave to answer over within twenty days from the entry of the order, and the present plaintiffs in error took an appeal to the Supreme Court of Minnesota. That court held that the constitutional provision was self-executing and created an individual liability on the part of the stockholder for corporate debts to an amount equal to the amount of stock held or owned by him, and affirmed the order of the District Court. Thereupon the writ of error from this court was sued out.

We are of opinion that the judgment of the Supreme Court of Minnesota was not a final judgment within section 709 of the Revised Statutes. It is a judgment affirming with costs an order which overruled a demurrer. Rule XVIII of the Supreme Court of Minnesota provides: "Upon the reversal, affirmance, or modification of any order or judgment of the District Courts by this court there will be a remittitur to the District Court, unless otherwise ordered." 12 Minn. XIV; Manual of Practice, 1872, Rule XVIII. The plaintiffs in error upon the return of the case to the District Court could plead over, as the order below allowing time for so doing had, before its expiration, been superseded by the appeal. Moreover, the record discloses that in this instance the parties, in view of taking the appeal, expressly stipulated "that after the decision on said appeal by said Supreme Court any of said defendants may answer in the court below if they see fit to do so, and

Statement of the Case.

may, after said decision on appeal, take any action in said lower court which they might take at the present time."

It will be observed that plaintiffs in error are only a portion of the defendants who were proceeded against by the intervening petition, and what has become of the others does not appear. The case should have been determined as to all, before our interposition, if justifiable in any view, could be invoked.

Under the complaint, accountings must be had and proofs taken as to the amount of the proceeds of the insolvent corporation's estate; the rights of claimants therein; the liability of directors and shareholders, if any, upon other accounts, etc., and the amount to be paid by each shareholder must be decreed. If this were a decree of the Circuit Court, it would come within the rule that to be final the court below should have nothing to do but to execute it if affirmed. Keystone Iron Co. v. Martin, 132 U. S. 91. And as a judgment of reversal by a state court with leave for further proceedings in the court of original jurisdiction is not subject to review here, Bostwick v. Brinkerhoff, 106 U. S. 3; Rice v. Sanger, 144 U. S. 197, this is also true of a judgment merely affirming an interlocutory order, however apparently decisive of the merits.

Writ of error dismissed.

MEEHAN v. VALENTINE.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

No. 12. Argued November 11, 12, 1890. Decided May 16, 1892.

One who lends a sum of money to a partnership under an agreement that he shall be paid interest thereon at all events, and shall also be paid one tenth of the yearly profits of the partnership business if those profits exceed the sum lent, does not thereby become liable as a partner for the debts of the partnership.

THIS was an action of assumpsit brought by Thomas J. Meehan, a citizen of Maryland, against John K. Valentine,

Statement of the Case.

executor of William G. Perry, both citizens of Pennsylvania, alleging Perry to have been a partner with Lawrence W. Counselman and Albert L. Scott, under the name of L. W. Counselman & Co., and counting on promissory notes of various dates from August 10, 1883, to November 25, 1884, signed by that firm, endorsed to the plaintiff, and amounting in all to about $10,000, with interest. The defendant denied that Perry was a partner in the firm.

At the trial, the plaintiff put in evidence the following agreement:

"L. W. Counselman.

Albert L. Scott.

"Office of L. W. Counselman & Co., oyster and fruit packers, corner Philpot and Will streets.

“Baltimore, Md., March 15, 1880. "For and in consideration of loans made and to be made to us by Wm. G. Perry, of Philadelphia, amounting in all to the sum of ten thousand dollars, for the term of one year from the date of said loans, we agree to pay to said Wm. G. Perry, in addition to the interest thereon, one tenth of the net profits over and above the sum of ten thousand dollars on our business for the year commencing May 1st, 1880, and ending May 1st, 1881,-i.e. if our net profits for said year's business exceed the sum of ten thousand dollars, then we are to pay to said W. G. Perry one tenth of said excess of profits over and above the said sum of ten thousand dollars; and it is further agreed that if our net profits do not exceed the sum of ten thousand dollars, then he is not to be paid more than the interest on said loan, the same being added to notes at the time they are given, which are to date from the time of said loans and payable one year from date.

"L. W. COUNSELMAN & Co."

Also the following endorsement thereon. "March 2, 1881. This contract and agreement is to continue one year longer on the same basis-i.e. from May 1st, 1881, until May 1st, L. W. COUNSELMAN & Co."

1882.

Statement of the Case.

Also three further renewals of the agreement from year to year, the first of which was by letter, dated March 18, 1882, from L. W. Counselman & Co. to Perry, with the same heading as the original agreement, and saying: "We hereby renew the agreement made with you May 1, 1880, which is to the effect that we will guarantee you ten per cent interest upon loans amounting to $10,000, and that if the net profits of our business is over $10,000 for the year commencing May 1, 1882, and ending April 30th, 1883, we will in lieu of the ten per cent interest give you ten per cent of the profits. We have two propositions for partnership May 1st, and if we accept either we will then, if you desire, return your loan."

The other renewals, dated April 4, 1883, and March 15, 1884, were substantially like the original agreement of March 15, 1880, except that in the agreement of April 4, 1883, the rate of interest was specified as six per cent.

The plaintiff further offered in evidence six promissory notes, amounting in the aggregate to $10,600, given by the firm to Perry in the months of March, May and June, 1884.

The plaintiff also called Scott as a witness, who testified that the firm was composed of L. W. Counselman and himself; that it was engaged in "the fruit and vegetable packing and oyster business" in Baltimore; that Perry was in the stationery business in Philadelphia; that the $10,000 mentioned in the agreement was paid by him to the firm, receiving their notes for it, and remained in the business throughout, no part of it having been repaid; that from time to time he lent other sums to the firm, which were repaid; that he was an intimate friend of the witness and visited him every few weeks; that these visits were not specially connected with the business, though on such occasions Perry "usually went down to the place of business and talked business;" that he annually asked and received from the firm accounts of profit and loss; that the accounts showed an annual profit, which varied from year to year, amounting for the second year to $11,000 or $12,000; that it being then found difficult to tell at the end of the year exactly what the profits would be, it was agreed with Perry that he should thenceforth receive $1000