US SUPREME COURT DECISIONS

l. Where the question before the jury is whether F. (the defendant) was a partner with K., so as to make him liable for the debts of the firm, K.'s declarations to third persons are not admissible in favor of the plaintiffs until they have established a prima facie case of partnership by other evidence.

2. The admission of the defendant and the deposition of B. to the effect that the defendant had procured for K. a loan of money to be used in a purchase of cotton, and that K. had voluntarily promised to give the defendant a part of the profits, if any were made, for his assistance in procuring the loan, when no sum or proportion of profits was named, does not raise such a presumption of partnership.

3. Nor is such evidence sufficient to require the Court to submit the question of partnership to a jury, and its instruction to find for the defendant was right.

4. Such instruction is right where the court would decide for the defendant on a demurrer to all the evidence, and the true rule in the case is that if, to the judicial mind, the evidence, tested by the law of the issue and the rules of evidence, is not sufficient to justify a jury fairly and reasonably in finding a verdict for the plaintiff, the court should so tell the jury.

5. If the court can see that if a verdict for the plaintiff should be rendered, it ought to be set aside as being unwarranted by the testimony, such instruction should be given in advance of the verdict.

R. & H. Pleasants sued Fant in the court below, and the single question in dispute was whether the defendant was a partner in the firm of Keene & Co. so as to charge him with a debt conceded to be due by that firm to the plaintiffs, arising out of some transactions in cotton. The case was tried before a jury, and when the testimony was through, both plaintiffs and defendant prayed instructions of the court, which were all refused, and the court said to the jury,

"There is no evidence in this cause from which the jury can find that the defendant had such an interest in the purchase and sale of the cotton by Keene & Co. as will make him, the defendant, a partner as to third persons, and the jury will therefore find their verdict for defendant."

The bills of exception disclosed the testimony on which this instruction was founded, and the question now before chanrobles.com-red

Page 89 U. S. 117

this Court was whether the verdict founded on that instruction should be set aside and the judgment reversed.

The direct testimony offered to prove the partnership was confined to the statements of Fant in a conversation with one of the plaintiffs and a clerk in their office, and the deposition of Keene, a partner of Keene & Co. The substance of the former was that Fant denied that he was a partner, said he knew from some experience what was necessary to make him a partner, and admitted that he had procured for Keene a loan of $10,000 in gold from a bank of which he was president, and that he was to receive part of the profits of Keene's venture in purchasing cotton with that money as compensation for procuring the loan. What portion of the profits he was to receive was not stated.

Keene in his deposition denied that Fant was a partner in the transaction, but said that Fant had negotiated for him the loan from the bank, and he had made Fant a promise, which was entirely voluntary, to give him a part of the profits he might realize, and that he had mentioned no particular part or proportion of the profits to be so given.

After the admission of this testimony, the plaintiffs, on the ground that they had sufficiently shown a relation between Fant and Keene to admit of Keene's declaration to third persons as to Fant's interest, offered to prove by one of the plaintiffs that Keene had told him Fant was a partner, and asked that the plaintiffs would advance money enough on the cotton then in their possession as brokers to enable him to pay Fant his money and let him out of the firm. This offer was objected to and the objection sustained by the court.

A large amount of testimony, however, was admitted the object of which was to show that Fant, as president of the bank, was in the habit of using the money of the bank in private speculations without the knowledge of the directors, but which was very feeble and far from establishing that fact.

Verdict and judgment having been given for the defendant, the plaintiffs brought the case here. chanrobles.com-red

Page 89 U. S. 119