
    Markham’s Executor vs Jones.
    Appear from the Bath Circuit.
    Chancery.
    
      Case 118.
    T/ase stated.
    
      Partnership. Dormant partners.
    
    
      July 17.
   Judge Breoic

delivered the opinion of the Court.

A careful examination of all the facts and testimony •in this case, has brought us to the conclusion:

1st. That at the date of the note in contest for $567 50, the testator, Markham, was not, in point of fact, the partner of Allen A, Miller in the manufacture of hemp.

2d. That Jones did not sell his hemp and receive said note upon the supposition that Markham was the partner of Miller, or under the belief or impression that such was the fact. On the contrary, that he sold the hemp to Miller, took his note for it, and looked to him alone for payment.

Upon the question of fact as to the alledged partnership, Miller, we think, was a competent witness, From his testimony it satisfactorily appears that there was no partnership at the date of the note, and when he purchased the hemp. That it was after that time he told Markham that he might consider himself a partner. No partnership, of course, could exist without the knowledge and consent of Miller. Whether what subsequently passed between Miller and Markham, was sufficient to constitute a partnership between them, it is not necessary to inquire. It clearly appears that Miller bought the hemp sstíá executed his note for it in the presence of Markham and Jones, a circumstance in view of all the other facts ■in the record, strongly corroborating the testimony of Miller, that no partnership, -at that time,-existed. There is, besides, the statement of Jones that Markham always 'told him he was-not a partner, or denied that there was a-ny partnership, and he believed him an honest truthful man.

ífdne represe tit himself to b® a partner, and credit is given upon, the faith of the representation, snob person will be responsible as a partner, whether -acttially so or not.

—But representations to on's person that he is a partner, will not make such person, (who i« not in fact a partner,) responsible to another, who has no knowledge of, and did not rely upon such representations. — SmitJb’s Mercantile Law, p. 23, note P.

Upon ihe second proposition,-that Jones did not sell bis -hemp and take the note of Miller alone, upon the faith of an existing partnership between him and Markham, the testimony is still more satisfactory and conclusive. He does not even ailedge in his bill that he made ■the trade with Miller upon the faith (hat Markham was a partner, or that he considered him, at the time, responsible or looked to him for payment. For nea? nine years afterwards, during the life of Markham, he always spoke of it as the debt of Miller, and there is nothing in the record going to show that he ever contended,'during that time, that ft was the debt of Markham, -or that-it had been contracted upon his credit or supposed liability.

Assuming then that in pointof fact, Markham was nett a,partner of Miller as alledged, and that credit was not given by Jones to Miller under the belief that such was the fact, we are of opinion that Markham would not be responsible, although he might-have represented himself as a partner, both before and afterthe transaction between •Jones and Miller.

The doctrine is- well settled, that if a person-represents iiimself as a partner, and credit is given upon the faith of the representation, that such person would be responsible as-a partner, whether actually so or not. And in this case from the representations of Markham, the presumption might well be indulged, that Jones was aware of them, and consequently relied upon his -credit in the ■transaction with Miller, but for the satisfactory evidence "to the contrary. :

The personal representations by Markham to Robertson and Dooley, &c., early in 1836, that he 'was a part-. ner, was not, in our opinion, such a public holding forth to the world of the fact, whether so or not, as to render him responsible to Jones, to whom he made no represen* tations of the kind, who was not aware that any such had been made, and who in the transaction with Miller, did not rely upon the existence of such a partnership: Smith's Mercantile Law, side page 23, note p.

B. A. Monroe and Robinson Johnson and Smith for appellant; Apperson and Cavan for appellee,

It results that the decree is erroneous and must be reversed, and the cause remanded with directions to dismiss the complainant’s bill and dissolve his injunction with costs and damages.  