#### Chapman &c. v. Wilson & Co.

August, 1812,

Lewisburg.

(Absent Brooke, J.)

Partnership—Issue as to Existence of—Evidence—Competency.—In assumpsit against S. B. & O. as partners under the firm of S. & Co. for goods sold, the question being whether B. and C. were partners of S. by whom the goods were purchased, and B. and G. appearing to have had a storehouse in another town; a witness was asked whether he saw boxes of goods marked S. & Co. at the storehouse of B. and C. The defendants objected to the question, but the circuit court permitted it to be answered, and the defendants excepted. Held, the evidence had a connexion, though very slight, with the matter in controversy, and though it might have been of very little weight, it was not error to permit it to go to the jury as a link in the chain of circumstances.

Same—Same—Same—Same.—A second bill of exceptions stated that the defendants asked a witness, whether he was present at a settlement made between S. B. and O. of their accounts relative to their mercantile transactions, after goods had been furnished the first by the two last? whether he knew for what certain bonds then executed by S. to **B.*and C. were given? and whether 20 per cent, on the amourt.stated to be due was not included in said bonds? The plaintiffs objected to the question, on the ground that the acts and declarations of the defendants could not be given in evidence for them, and the court sustained the objection. Held, the evidence was properly rej ected; the bill of exceptions not shewing the time of the transaction between the defendants, nor suggesting any connexion between the fact which the evidence was offered to prove, and the matter in cqn tro versy ,nor stating anything from which such connexion could be inferred.

Same—Same—Same—Same —A third bill of exceptions stated, that the plaintiffs asked a witness if he had heard S. say what representations he had made to the plaintiffs at the time he purchased the goods from them, as to the • existence of a partnership between himself and the other defendants. Held, the evidence was properly admissible to prove that the plaintiffs intended to sell to, and S. intended to purchase for, a partnership, but was no proof against B. and C. that *245they were the partners. That evidence, however, was not regularly admissible, even for this limited purpose, until the plaintiffs had offered evidence tending- to shew that there was a partnership between S. B. and C. which authorized S. to purchase on the credit of the three.

Same- Same- instructions*—What Does Not Constitute Partnership.—A fourth bill of exceptions stated, that the court was asked by the defendants to give the jury the following instructions: 1. If the jury shall believe from the evidence, that in June 1832, S. bought of B. and G. $1000 worth of goods, to commence merchandizing with on Brush creek, and thalS. was to pay Iff and O, for said goods 20 per cent, upon the cost thereof, or a portion of the profits of the same, to be left to the election of B. and G. and that in September succeeding the purchase, and before all the §1000 worth of goods had been received by S., B. and G. did elect to take the 20 per cent., and that when the goods were sold and delivered, they were charged by B. and O. to S., and the business upon Brush creek conducted, not only to the time of the election, but afterwards, in the name of S., then the said contract is not in law a partnership. 2. If the iury shall believe from the evidence, that the election by B. and C. under the contract with S. of .June 1833, was made in September thereafter, and was to take the 20 per cent., and that the same was previous to the purchase of goods by S. of the plaintiffs, and that the plaintiffs at the time of giving the credit to S. did not know of the said contract ma.de in June 1832, then they ought to find for the defendants. liiir.i), the instructions so asked correctly expound the law of the case stated therein, and the circuit court erred in refusing to give them.

*Same — *Same*— Same — Limited Partnership— Notice of Dissolution.—The fourth bill of exceptions further shewed that the circuit court, instead of the instructions so asked, gave the following: “If the jury shall believe from the ■evidence, that B. and G. entered into a contract with S. by which they agreed to furnish him with 100(1 dollars worth of goods for the purpose ■of merchandizing on Brush creek, for which, by said contract, they were entitled to demand from S. either an advance of 20 per cent, or to take a portion of the profits arising from the sale thereof, and that the said goods or a portion thereof were furnished to S. who traded thereon previous to the said election being made, it constituted B. and O. partners of S. until such period as they have made their said election and given notice thereof to the world, and responsible for his contracts in relation to said business.” Head, the instruction so given was wrong in this, that though the case stated might have created a temporary partnership until election, it was limited to the sale of the goods furnished and to the proiits thereof, and did not extend to purchases and sales of other goods, and the dissolution of such partnership was effectual in respect to all who may have had actual notice, though such notice may not have been given to the world, or even publicly.

Appellate Court-Refusal to Give Instruction—Review. —Where a court refuses to give an instruction asked, and its opinion is excepted to, if the bill of exceptions does not state that evidence was offered tending to prove the case supposed by the instruction, and the court has simply declined to give the instruction, such refusal may perhaps be justified, on the ground that the case was merely hypothetical, and the instruction asked on an abstract question. But if the court not only declines to give the instruction asked, but proceeds to give another in lieu thereof, the inference is a reasonable one, that there was evidence tending to prove the case supposed, and the appellate court will not only enquire whether the law is correctly expounded in the instruction given, but. will also enquire whether it is correctly stated in the instruction asked.

John S. Wilson and Bernard Peyton, merchants and partners trading- tinder the firm and style of John S. Wilson & Co. brought an action of assumpsit in the circuit court of Giles against French C. Smith, Augustus A. Chapman and Andrew Beirne, as merchants and partners trading tinder the firm and style of French C. Smith *&*Co. for goods, wares and merchandize alleged to have been sold by the plaintiffs to the defendants. The '"’defendants Chapman and Smith severally pleaded non assumpsit, upon which pleas issues were joined. At the trial, five bills of exceptions were filed to opinions given by the court.

The first bill of exceptions stated, that the plaintiffs, to support the issue on their part, introduced first as a witness Samuel Peck, and after several other questions to the witness, he was asked whether he saw boxes of goods marked French C. Smith & Co. at the storehouse of Beirne & Chapman (the partners in which firm were the defendants Andrew P. Beirne and Augustus A. Chapman) in Parisburg. To the answering of this question the defendants objected; but the court, being of opinion that it was a circumstance which, taken in connexion with others, was proper for the consideration of the jury in deciding the question of partnership, overruled the objection, and permitted the question to be asked.

The second bill of exceptions stated, that the defendants introduced James M’Clangherty as a witness, and asked him whether he was present at a settlement made between French C. Smith, Andrew P. Beirne and- Augustus A. Chapman of their accounts relative to their mercantile transactions, after goods had been furnished the first by the two last? whether he knew for what certain bonds then executed by Smith to Beirne & Chapman were given? and whether 20 per cent, on the amount stated to be due was not included in said bonds? The plaintiffs objected to the question, on the ground that the acts and declarations *246of the defendants could not be given in evidence for them; and the court sustained the objection.

The third bill of exceptions stated, that the plaintiffs introduced a witness, and asked him if he had heard Trench C. Smith say, what representations he had made to the plaintiffs, at the time he purchased the goods from them, as to the existence of a partnership between himself and the other defendants? and the defendants ^objected to this question being answered, on the ground that the declarations of Smith after the purchase was made were not evidence of what took place at the time of the purchase, and on the further ground that his declarations were no evidence against his codefendants; but the court permitted the question to be asked, instructing the jury that said declarations of Smith were no evidence against his codefendants, unless they should be of opinion that a partnership was proved independently thereof, nor were they evidence for the purpose of establishing such partnership; and the defendants excepted, both to the admission of the evidence and to the opinion of the court accompanying it.

The fourth bill of exceptions stated, that the court was asked by the defendants’ counsel to give to the jury the following instructions:

1. If the jury shall believe, from the evidence in the cause, that in the month of June 1832, Trench C. Smith, one of the defendants, bought of Andrew P. Beirne and Augustus A. Chapman 1000 dollars worth of goods, to commence merchandizing with on Brush creek, and that the said Smith was to pay said Beirne & Chapman for the said goods the sum of 20 per cent, upon the prime cost of the goods, or a portion of the profits of the same, to be left to the election -of the said Beirne & Chapman, and that in the month of September succeeding the purchase of the same by Smith, and before all the 1000 dollars worth of goods had been received by the said Smith, the said Beirne & Chapman did elect to take the 20 per cent, and that when the goods were sold and delivered they were charged by said Beirne & Chapman to said Trench C. Smith, and the business upon Brush creek conducted, not only to. the time of the election but afterwards, in the name of Trench C. Smith, then the said contract is not in law a partnership.

2dly. If the jury shall believe, from the evidence, that the election by Beirne & Chapman, under the contract *with Smith of June 1832, was made in September thereafter, and was to take the 20 per cent, and that the same was previous to the purchase of goods by Smith of the plaintiffs, and that the plaintiffs, at the time of giving the credit .to Smith, did not know of the said contract made as aforesaid in June 1832, then they ought to find for the defendants'. .

The court refused to give the instructions so asked, and instead thereof gave the fol- I lowing:

If the jury shall believe, from the evidence, that the defendants Augustus A. Chapman and Andrew P. Beirne entered into a contract with the defendant Trench C. Smith, by which they agreed to furnish him with 1000 dollars worth of goods for the purpose of merchandizing on Brush creek, for which, by said contract, they were entitled to demand from the said Trench C. Smith either an advance of 20 per cent, or to take a portion of the profits arising from the sale thereof, and that the said goods or a portion thereof were furnished to the said Trench C. Smith, who traded thereon previous to the said election being made, it constituted the said Augustus A. Chapman and Andrew P. Beirne partners of the said Trench C. Smith unti-l such period as they may have made their said election and given notice thereof to the world, and responsible for his contracts in relation to said business.

The fifth bill of exceptions stated, that the defendants moved the court to instruct the jury,

1. That if they shall believe, from the evidence, that in June 1832 the defendant Trench C. Smith purchased by private contract, of Andrew P. Beirne and Augustus A. Chapman 1000 dollars worth of goods to commence a mercantile business on Brush creek, and that the said Smith was to pay to the said Beirne & Chapman 20 per cent, upon the prime cost of the goods so sold, or a portion of the profits, at the election of the said Beirne & Chapman, and that' in the month of September thereafter, *before all the said goods were delivered to said Smith, the said Beirne & Chapman did elect to take the 20 per cent, and that the goods when sold were charged by the said Beirne & Chapman to the said Trench C. Smith, and the business on Brush creek, both before and after the said election, was conducted in the name of Trench C. Smith, then the said contract •was not in law a partnership.

2dly. That if the jury shall believe that Trench C. Smith, in the month of June 1832, purchased of Andrew P. Beirne and Augustus A. Chapman 1000 dollars worth of goods to merchandize on Brush creek, for which the said Smith was to pay to the said Beirne & Chapman 20 per cent, on the prime cost of said goods or a part of the profits, and that said contract was a private and not a public contract, and that the said Beirne & Chapman, in the month of September 1832, and previous to the delivery of all the goods, did elect to take the 20 per cent, and that in the months of Tebruary and June thereafter Trench C. Smith purchased the goods of the plaintiffs, they the said plaintiffs not knowing of the existence of the contract of June 1832, then they ought to find for the defendants. If the jury shall believe, from the evidence in the cause, that the contract of June 1832, referred to in the foregoing instructions, was a private one, and that the election was made in September thereafter, no notice of such election was necessary.

*247The court gave these instructions, but further instructed the jury that if they should be of opinion that the said Augustus A. Chapman and Andrew P. Beirne, after the delivery of a portion of the said goods, and before they had made their election, represented themselves as partners, and acted as such, then they are in law partners of the said French^ C. Smith (even though the contract aforesaid may have been private), arid responsible for his contracts, until such time as they shall '"'have given public notice of their having made such election and ceased to be partners.

The jury found a verdict for the plaintiffs for 1183 dollars 58 cents damages, with interest from the 25th of April 1834 till paid; and judgment was rendered for the same, with costs.

On the petition of the defendants Chapman and Beirne, a supersedeas was awarded.

M’Comas, for plaintiffs in error. We cannot well conceive any circumstance with which the evidence mentioned in the first bill of exceptions could be connected, that would make that evidence of partnership.

II. The testimony mentioned in the second bill of exceptions was a link in the chain of evidence, and ought to have been admitted.

III. It is difficult to conceive for what purpose the evidence mentioned in the third bill of exceptions could have been received, unless to prove partnership. Yet the jury must have supposed it was to prove something.

IV. and V. Upon the question whether the contract supposed by the instructions asked constituted a partnership, the authorities will first be examined that are relied on upon the other side. The principle established by the case Ex parte Hamper, 17 Ves. 404, and laid down in Gow on Partn. 15, and 3 Kent’s Comm. 32, is, that a person who has a specific interest in the profits themselves, as profits, is a partner. In Weaver v. Tapscott, *9*Leigh 424; Cary on Partnership 8, 10, 14; Waugh v. Carver, 2 H. Black. 235, and Smith on Mercantile Law 3, it is laid down, that a share of the profits constitutes a partnership, and that when there is no community of profits there is no partnership. The question then is, whether in this case there was a community of profits? Was there ever a time, after the contract by Beirne & Chapman with Smith, in which *the two former had a specific interest in the profits? Until they made their election, there was no such interest; and after their election, there could be none. Had Beirne & Chapman elected to take a part of the profits, their election might have related back to the delivery of the goods. And if it would so have related back, an election to take the 20 per cent, must equally relate back. No case has been found in which a contract like this has been held to create a partnership. Here the credit was not even given during the time that the right of election existed.

But if any partnership existed, what kind of partnership was it? A partnership may be general, or limited to a particular branch of business or particular object. 3 Kent’s Comm. 30; Willett v. Chambers, Cowp. 814; Gow on Partn. 7; Montague on Partn. 9; Ensign v. Wands, 1 Johns. Ch. Rep. 171; Livingston v. Roosevelt, 4 Johns. Rep. 251. Here the partnership was limited to the sale of a 1000 dollars worth of goods, and the only interest which Beirne & Chapman could have in the concern was a portion of the profits arising from the sale of those goods. Such a partnership could not authorize Smith to purchase goods upon the joint credit of himself and Beirne & Chapman. Moreover, if there was a partnership, whether general or limited, Beirne & Chapman were only dormant partners, and not liable for the contracts of Smith made after they had retired from the concern, whether notice was given of the dissolution or not. 3 Kent’s Comm. 68; Armstrong v. Hussey, 12 Serg. *&*Rawle 315. It is said in Evans v. Drummond, 4 Esp. N. P. Cas. 89, that “if the acting partner represents the dormant partner as a partner even after the dissolution, the dormant partner will be bound, unless he gives notice of the dissolution.” But Kent, with this case before him, lays down the law differently. And the doctrine is also questioned by Starkie; 3 Starkie on Evid. 1080. His reason is conclusive, *to wit, that the moment the partnership ceases, the right to bind ceases.

The court manifestly erred in instructing the jury that Beirne & Chapman were liable until public notice was given of the dissolution. A person dealing with a firm, who has notice of its dissolution, cannot hold the partner bound who has retired, although there maj' have been no public notice of such dissolution.

It will not do to argue that the instructions asked for and given were mere abstractions. The appellate court cannot presume that instructions given by tb'e court below were inapplicable to the case. There is a great difference between an instruction refused and one given. An erroneous instruction, even upon an abstract question, might mislead the jury.

Peyton, for defendants in error.

Where a partnership is denied, creditors of the firm,.not being privy to or in possession of the partnership agreement, can only establish the partnership b3^ circumstances. If it can be shewn that the defendants sulfered their connexion as partners to be known, or suffered their *names*to be used as partners, this is conclusive, fioscoe on Evid. 212. Now Beirne & Chapman (two of the alleged partners in the firm of French C. Smith & Co.) having a store at Parisburg, the fact of goods being boxed or in boxes at the store last mentioned for French C. Smith *&*Co. would be a circumstance to lead the public to conclude that the3r were partners. It must be born in mind, that though in point of fact persons are not part*248ners, jret if they so represent, themselves, and thus credit is gotten, they are liable. De Berkom v. Smith, 1 Esp. N. P. C. 29; Kell v. Nainby, 10 Barn. & Cress. 20; 21 Eng. Com. Law Rep. 17; Gurdon v. Robson, 2 Camp. 302; Waugh v. Carver, 2 H. Black. 235.

II. It is supposed by the second bill of exceptions that goods had been furnished one defendant by the two others, and that after such goods were furnished, *the three defendants had a settlement of their mercantile accounts; and the object seems to be, to prove that in that settlement 20 per cent, was added to the amount due for the goods furnished. But what goods were furnished, when, and for what purpose, is unexplained. What this settlement embraced, whether the whole mercantile dealings of the parties, or the goods furnished; and for what purpose the 20 per cent, was included, whether as an agreed profit, or as an advance upon the sale of the goods furnished,' is equally unexplained. The evidence was of transactions to which the plaintiffs were strangers, and by which, if true, they could not be affected. The only legitimate purpose for which.it could be offered was to prove a dissolution of the concern. A partnership formed by parol may, it is true, be dissolved by parol. Rackstraw v. Imber, 1 Holt 368; 3 Eng. Com. Law Rep. 132. But though a partnership may be dissolved as it regards the partners themselves, their liability to creditors may still continue. And as this consequence can only be obviated by notice, the evidence offered, without evidence of notice, was altogether irrelevant and of course inadmissible. All persons dealing with a concern rely upon the united credit of all its members. Therefore when a dissolution takes place, justice requires that the world should be fully apprized of the fact. Those having dealings with the concern must have particular, and the world general notice. Godfrey v. Turnbull, 1 Esp. N. P. C. 371; Parkin v. Carruthers, 3 Esp. N. P. C. 248; Fox v. Hambury, Cowp. 445. Though a partner whose name does not appear in the firm is only liable for goods furnished during the time that he is actually a partner, yet if he be krown to be a dormant partner, though his name does not appear in the firm, the usual notice of dissolution is necessary to avoid liability. Cary on Partn. 187; Evans v. Drummond, 4 Esp. N. P. C. 89.

*111. It was competent to the plaintiffs to prove that French C. Smith bought the goods not upon his own credit, but upon the credit of the defendants. The declarations of Smith on this point were conclusive, and his admission that such declarations were made was equally conclusive. The defendants Beirne & Cha'pman, it is admitted, were not bound by these representations unless they were partners; and the court.instructed the jury that the declarations of Smith were inadmissible to establish the partnership. This opinion of the court, thus limited, seems to be correct. Cary on Partn. 139; Evans v. Drummond, 4 Esp. N. P. C. 89; Parkin v. Carruthers, 3 Esp. N. P. C. 248; Gow on Partn. 273.

IV. What constitutes a partnership between individuals contracting together, is one question ; but what constitutes a partnership as to third persons, is another and different question. The first species of partnership is the result of a contract inter se. The latter species may be created without contract. For the law is, that he who lends his credit to a firm, or holds himself out as a partner, is liable for the engagements of the partnership with third persons, though he may not be interested in the capital or profits. Alderson v. Clay, 1 Starkie 405; 2 Eng. Com. Law Rep. 445; Smith on Mercantile Law, p. 6; Ex parte Hamper, 17 Ves. 404; Waugh v. Carver, 2 H. Black. 235; Weaver v. Tapscott, 9 Leigh 424. In this case, Beirne & Chapman have held themselves out to the world as partners in the store on Brush creek, have furnished the capital in goods, and have reserved to themselves an election to take a portion of the profits. This election, by the terms of the contract, could not be made until the goods were sold: for, until that period, it was not in the power of Beirne & Chapman to make the election with a proper regard to their own interests. After the sale, they could see from the books whether it was to their interest to take the 20 per cent, or a portion of the profits. Any variation *'of this contract, made in September, after the business was commenced by the defendants and before a sale of the goods, and not made known to creditors, could not screen the defendants from their liability as partners to third persons. Cary on Partn. 8, 10, 14; Alderson v. Pope, 1 Camp. 404; Ex parte Hamper, 17 Ves. 404; Godfrey v. Turnbull, 1 Esp. N. P. C. 371, and the cases cited on the second point.

But it is argued that the defendants were associated for a limited purpose or branch of business, viz. for vending the goods sold by Beirne & Chapman to Smith. In answer to this we say, there was nothing that could apprize the public that this was a limited partnership. The public saw Smith commencing mercantile business upon Brush creek. They saw that the goods to be vended were in part procured from Beirne & Chapman ; that Beirne & Chapman were interested in the store, and were, at their election, to receive a portion of the profits. How was the public to know that this trading was limited to the vending of the goods gotten from Beirne & Chapman? If they could know this, still, might not occasional additions to the stock be indispensably necessary to effect a sale of the original 1000 dollars worth of goods bought of Beirne & Chapman? If so, the subsequent purchase from the appellees would have been within the scope of this limited partnership.

The appellees therefore insist that the instruction given by the circuit court is *249free from error; that the contract constituted the appellants partners previous to election, and subsequent thereto (no notice being given thereof) as it regarded third persons.

Neither did the court err in refusing to give the instructions asked. The court was clearly right in refusing to give the first instruction asked. For there was clearly a partnership, between the contract of sale in June 1832, and the period of election in September *1832. The store was opened, and a part of the goods sold. The election in September, if it amounted to any thing, must have been a dissolution. For the election was not made according to the contract of June 1832; that contract only authorizing election when the goods were sold. Gow on Partn. 15; Grace v. Smith, 2 W. Black. 998; Ex parte Hamper, 17 Ves. 404; Fromont v. Coupland, 2 Bingh. 170; 9 Eng. Com. Law Rep. 366; Purviance v. M’Clintee, 6 Serg. & Rawle 259; 3 Kent’s Comm. 32.

The same principles and authorities shew that the second instruction asked was properly refused. This instruction seems to proceed upon the ground that partners are not liable to creditors who are ignorant of the terms of the partnership contract; a contract rarely, if ever, known to creditors in any case. A partnership is often created by construction of law; as where one person engages jointly with another in a transaction, either as agent or otherwise, and has an interest in the profits. As frauds might be practised if such agreements bound third persons, and the law will protect third persons against frauds, it has therefore declared alt persons entering into such agreements liable to the world as partners. Cary on Partn. 8, 9, 10. 'Whoever shares in the profits of a concern is a partner as it regards the public. Waugh v. Carver, 2 H. Black. 235. Where a merchant employs a broker to purchase goods, and it is agreed between them that the broker shall receive a portion of the profits as a recompense for his trouble, they are partners as it regards third persons. Smith v. Watson, 2 Barn. *&*Cress. 401; 9 Eng. Com. Law Rep. 122; Reid v. Hollinshead, 4 Barn. & Cress. 867; 10 Eng. Com. Law Rep. 460; Ex parte Hamper, 17 Ves. 404.

It is moreover apparent that the judge of the circuit court considered, that the facts supposed by the instructions asked did not correspond strictly with the *fncts proved. That the goods purchased in June 1832 were in part immediately delivered, and the store opened upon Brush creek, and the sales going- on before the election made, are facts kept out of view, though not expressly negatived. A.nd the instruction of the judge seems to have been given with a view of bringing to the consideration of the jury those facts, and the law arising thereon. His object was to prevent the jury from being misled by a plausible but incorrect statement of facts.

V. The same object seems to have influenced the judge in giving the instruction *mentioned in the*fifth bill of exceptions. The instructions appearing by this bill to have been asked only vary from those appearing by the fourth bill to have been asked, *in*this, that in the instructions last asked the contract of June 1832 is represented as a private contract, unknown to the plaintiffs when they extended credit to Smith. The judge having heard evidence going1 to prove that both Beirne and Chapman, from the time of the contract in June 1832 till the period of their election in September, had publicly represented *thcm*selves and acted as the partners of Smith in the store upon Brush creek, considered it his duty, while he gave the instructions last asked, to bring to the consideration of the jury a state of facts entitling the plaintiffs to recover notwithstanding those instructions.

AH of the exceptions are liable to the following observations: 1. In none of them is the evidence set forth, so as to enable an appellate court to ascertain whether the verdict was rendered under the influence of any opinion excepted to. 2. When the defendants excepted to the admission or exclusion of evidence, they should have taken care to state such a case as would shew the relevancy of the evidence excluded, or the irrelevancy of the evidence admitted, because it is always incumbent on a party seeking to reverse a judgment *to shew that the-e is error. Kowt’s adm’x v. Kyle’s adm’r, 1 Leigh 216.— 3. There is no statement of the facts proved, to enable the court to ascertain whether the instructions asked for and given had any application to the case, or to shew that the opinions were erroneous.

C. Johnson, in reply,

cited the cases referred to in 1 Rob. Pract. 344-348, and said, the establishment of the proposition which the counsel on the other side was endeavouring to establish as to the imperfect nature of the bills of exceptions, would lead to a reversal of the judgment. He proceeded then to examine the opinions excepted to.

I. Although (he remarked) the statement in the first bill of exceptions does not shew what was the point in issue, yet enough is stated to shew that testimony was improperly admitted. All testimony is improper which is irrelevant. If testimony be prima facie irrelevant, it is incumbent on the party who offers it, to make it appear that it is relevant. If, for example, declarations of a stranger be offered, it is not necessary for the party who excepts to the opinion of the court admitting them, to do more in the bill of exceptions than state that such declarations were offered and received. And yet such hearsay evidence might be proper in consequence of some evidence previously given. They might, for example, be declarations of a witness who had been examined, contradicting what he had deposed to. But in such case the party offering them must take care to have enough stated in the bill of exceptions to shew the propriety of receiving them. In *250the present case, how could 'the evidence set forth in the first bill of exceptions tend to prove a partnership? By itself, we cannot see that it would have such tendency; and if any other evidence had been given that would have authorized it to be admitted, that other evidence ought to have been stated.

*11. In the second bill of exceptions, the previous evidence not being stated, the case is governed by those already cited which require a reversal because of the imperfect nature of the bill of exceptions.

III. The third bill of exceptions shews that declarations respecting the existence of the partnership were permitted to be given in evidence, with an instruction that they were not evidence of its existence. Of what else could they be evidence? This bill of exceptions is at least obnoxious to the objection of the want of certainty.

IV. We admit that if the compensation had not been in the alternative; if the contract had been to take a part of the profits without any condition, it would have been a case of partnership. But we have been unable to find any case in which a party thus contingently entitled to a share of the profits has been held a partner. The main reason assigned for holding one who shares in the profits a partner, is, that he who so shares ought, in reference to the other dealers, to be held to share in the losses, because those dealers give credit trusting to the profits as a fund belonging to those whom they trust. Where the interest is alternative and contingent, there is, until the election of one thing or the other, no right to either, and until a share of the profits is elected, there is no community of profits. The vendor must not wait until hp sees that profit is sure. The vendee has a right to require that the election be made in a reasonable time. But when the election is made, it relates back to the commencement of the dealing. What objection can there be to this view of the subject, as it regards the public? If they know the contract and deal in reference to it, they cannot complain that they are injured by it. If the contract be secret, they deal on the credit of him to whom they sell, and from him no part of the profits is taken. The court should therefore have given the first instruction asked. It was evidently pertinent *to the issue, and the court did not refuse it because there was no evidence of the facts supposed by it, but gave an instruction based upon the same state of facts. An appellate court can never presume that the court below gave an instruction not pertinent to the matter in issue. And in giving that instruction, as well as in refusing the second instruction asked, that court has clearly erred. If there had been a partnership, it was certainly dissolved before the transaction in question, and the former partners then cannot be iiable unless for want of notice. The cases cited by mr. M’Comas shew that notice of the withdrawal of a dormant partner is not necessary at all. And the circuit court has ’held that there must be notice to the world. Surely, there is no foundation in law for this. If notice had been given to the plaintiffs, it would not only have been good, but better than notice in the papers. The court was eminently wrong in another respect. It should have told the jury that if they thought there was a partnership, it was limited to a single object,—to the vending of these goods, and the business properly connected with it; not that it was a partnership in other goods. The argument on the other side supposes that a very curious mode might be adopted to sell these goods; viz. to purchase others.

V. What has been said upon the fourth bill of exceptions will also apply to the fifth; the variations being very slight.

*

Instructions Brroneous—Judgment Reversed.--The principal case is cited in Strader v. Goff, 6 *W.*Va. 264, to the point that when an instruction given and excepted to, is apparently erroneous, the judgment must be reversed, though it be not shown whether it prejudiced the party who excepted or not. See *foot-note*to Colvin v. Menefee, 11 Gratt. 87, and monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

STANARD, J.,

delivered the opinion of the court:

The court is of opinion that the evidence mentioned in the first bill of exceptions had a connexion, though very slight, with one of the questions involved in the issue, and though it might have been of very little weight, it was not error to permit it, as a link in a chain of circumstances, to go to the jury.

*The evidence mentioned in the second bill of exceptions was properly rejected. The exception does not shew the time of the transaction between the defendants, nor suggest any connexion between the fact the evidence was offered to prove, and any matter in controversy in the suit; nor is there any thing stated in the exception from which such connexion can be inferred.

The evidence mentioned in the third bill of exceptions was properly admissible, to prove that the plaintiffs intended to sell to, and Smith intended to purchase for, a partnership, but was no proof against Chapman & Beirne that they were the partners. That evidence, however, was not regularly admissible in this case, even for this limited purpose, until the plaintiffs had offered evidence tending to shew that there was a partnership (either by express contract, or by Chapman & Beirne permitting their names to be used as partners, or otherwise,) between Smith, Chapman and Beirne, that authorized Smith to purchase on the credit of the three.

The law of the case stated in the fourth exception is correctly expounded by the instruction asked for thereon by the defendants. But it is not stated that evidence was offered tending to prove such case; and if the court had simply declined to give the instruction, such refusal might have been justified, on the ground that the case was merely hypothetical, and the law arising on it an abstract question. As the court, however, not only overruled the instruction asked, but proceeded to give an instruction, it is a reasonable implication that there was evidence tending to prove the case, and therefore the rectitude of the judgment on the instruction overruled, and *251on that given, is proper for enquiry in the appellate court. As before stated, the court erred in overruling the instruction sought. The case stated, to which the instruction given was applied, differs from that on which the instruction was asked; and if such case had been made out by the proof, the instruction *was wrong in this, that though the case so stated might create a temporary partnership until election, it was limited to the sale of the goods furnished, and to the profits thereof, and did not extend to purchases and sales of other goods; and the dissolution of such partnership was effectual in respect to all who may have had actual notice, though such notice may not have been given to the world, or even publicly.

The addition to the instructions, which is the subject of the fifth exception, was not error, if it be understood that the representing themselves and acting as partners by Chapman & Beirne, mentioned in that addition, had relation to an existing and continuing partnership for the sale and purchase of goods, or to a partnership generally, without express qualification or limitation as to the subject or the continuance thereof.

It does not however appear with sufficient clearness, that the said addition was, or was intended to be so understood; and for that reason the addition was error.

The judgment ought to be reversed with costs, the verdict set aside, and a new trial awarded, on which the principles herein declared in respect to the admission and rejection of evidence, and the instructions to the jury on the law of the case, are to govern, should occasions occur on the new trial for their application, and the court be asked to apply them.