
    JOHN T. VINSON, ADMINISTRATOR OF RACHEL PROUT, v. MICHAEL W. BEVERIDGE.
    At Law. —
    No. 358.
    I. A and B were partners. They agreed with 0, who was their salesman, to associate his name with the firm. C was to receive for his services at the rate of four per cent, on the amount of cash and credit sales, but was not to be bound for the debts of the firm. A notice was published in a newspaper of large circulation that C was to have an interest in the establishment. It was held that this was not a declaration of copartnership, and did not make O responsible for the debts of the firm.
    H. Such publication will not entitle a creditor of the firm to recover against 0, unless he knew of it previously to giving credit'; and the mere proof of publication in p, newspaper is not sufficient to show that the creditor had such knowledge at the time of the transaction.
    STATEMENT 0E THE CASE.
    This is an action to recover the amount of a promissory-note made by C. S. Fowler & Co., in favor of Rachel Pront, for the sum of $1,600, with interest from date, dated August 1, 1860, and payable on demand. It was admitted at the trial that the note was the note of the firm of Charles S. Fowler & Co., and was wholly in the handwriting of Charles S. Fowler himself. For the purpose of showing that the defendant was a member of the firm of C. S. Fowler & Co., the plaintiff gave in evidence an advertisement or public notice, published in “The National Intelligencer” about the 1st of April, 1858, in these words: “Notice! — M. Wm. Beveridge has interest in our establishment from the 1st instant. We trust, with his additional aid, &c., we shall be able to offer further inducements in our business. C. S. Fowler & Co.” He also called the defendant as his witness to prove that at the time when said notice was published the defendant -was in the store of C. S. Fowler & Co., and knew of its publication. On cross-examination defendant testified that before the publication referred to he was employed by the firm, then consisting of Charles S. Fowler and John F. Webb, as a salesman, at a fixed salary; and about that time entered into the following agreement:
    “We, the undersigned, do hereby agree to associate with us the name of M. Wm. Beveridge, for the space of one year, for the purpose of conducting the crockery business in its various branches, under the name and style of C. S. Fowler & Co.; the said M. Wm. Beveridge to receive for his services the rate of four per cent, on the gross amount of cash and credit sales; but in ho case shall the said M. Wm. Beveridge be considered bound for any debt or debts of the above-named firm.”
    And, further, that he had no more control in the business of said firm after than before said agreement; that he never signed the firm-name, purchased goods, nor contracted debts in its name; and was not acquainted, in any way, with its business or books except so far as was necessary in the discharge of his duty as salesman.
    At the conclusion of the testimony the defendant asked the court to instruct the jury as follows:
    
      First. That the publication offered in evidence was not a declaration of partnership, and had not the effect to make defendant responsible, as a partner, for the debts of the firm of C. S. Fowler & Co., notwithstanding that it was authorized by him.
    Second. That in the absence of actual proof of partnership, the plaintiff cannot recover from defendant in this action without proving that he, the defendant, held himself out to plaintiff’s intestate as such partner, and that she gave the credit to said firm, out of which the note in suit grew, believing defendant to be a member thereof; that it is not sufficient to show that defendant held himself out to the world generally as a partner; but it must be pi’oved that he so held himself out to the plaintiff’s intestate, and that the publication was not such holding himself out to her, nor sufficient to make him liable as a partner in this action, unless the jury found that it came to her knowledge before the credit was given.
    Third. That the publication is merely a circumstance which may be considered as tending to prove actual knowledge by plaintiff’s intestate that defendant held himself out as a partner, but does not raise a presumption of such knowledge, to be rebutted by the defendant; and unless the jury are satisfied that such knowledge existed the defendant is not liable.
    The cause is now here on a motion for a new trial in the first instance, upon exceptions to the refusal of the court to instruct the jury as requested.
    
      A. G. Riddle and Francis Miller, for plaintiff',
    cited Story on Partnership, sec. 64; 3 Kent’s Comm., 32 and 33; Chitty on Contracts, 263; ex-parte Hamper, 17 Vesey, 414, note; Fisher v. Bowles, 20 Ill., 396; National Bank v. Norton, 1 Hill, 578 and note; Johnston v. Warden, 3 Watts, 106; Wright v. Pulham, 2 Chitty’s Rep., 121; Post v. Kimberly, 9 John., 489; Pitcher v. Barrows, 17 Pick., 365; Benedict v. Adm’rs of Davis, 2 McL., 350; Chitty on Bills, p. 39.
    
      
      W. S. Cox and W. B. Webb, for defendant,
    cited Parson on Contracts, vol. 1, (6th edition,) p. 161; Story on Partnership, sec. 32, and cases cited in note 1; 3 Kent’s Comm., 33, 34; Burkle v. Eckhart, 1 Denio, 342; same case on appeal, 3 Comstock. 137, 138; Benny v. Cabot, 6 Met., 89; Berthold et al. v. Goldsmith, 24 How., 543; Pond v. Pittard, 3 Met. & Wels., 357; Vanderburgh v. Hall, 20 Wend., 70; 1 Smith’s Leading Cases, 731; Dickinson v. Valpy, 10 B. & C., 128, 140; Wood v. Duke of Argyle, 6 M. & G., 928, 932; Wood v. Pennell, 51 Me., 52; Fitch v. Harrington, 15 Gray, 468; Shott v. Streatfield, 1 Moody & R., 8; Carter v. Whalley, 1 B. & Ad., 11; Benedict v. Davis, 2 McLean, 347; Markham v. Jones, 7 B. Mon., 456; Hicks v. Craw, 17 Vt., 449.
   Mr. Justice Hagner

delivered the opinion of the court:

The defendant’s first prayer presents to the court the question whether the advertisement, in itself, was a declaration which was sufficient to bind the defendant as a partner, as to any person who may have dealt with the firm after seeing the advertisement. In our opinion it was legally entitled to no such effect.

It merely stated that “ from the 1st instant ” Beveridge had “ an interest in the establishment,” which, in itself, furnishes no proof that he was to be a member of the firm; since a participation in profits, if the language necessarily implied even that, does not, in itself, constitute the recipient a partner.

In Pollock’s Digest of the Law of Partnership, page 2, it is declared that the nearest approach to a precise definition which has been given by judicial authority in England, is the statenrent that “to constitute a partnership the parties must have agreed to carry on business and share the profits iu common, where ‘profits’ means the excess of returns over outlays.” So far from conveying any such idea, the language of the advertisement would seem to repel it. It simply gives notice that from the date specified Beveridge “ has an interest,” and it contains the further expressions, “ our establishment,” “our business,” “we trust,” “we shall,” “his additional aid”; and it is not signed by Beveridge or by the individual members, but with the old firm-name. For these reasons, we think the first prayer of the defendant should have been granted.

In our opinion the second prayer of the defendant correctly embodied the law upon the point involved. Where the party sued in reality was not a partner, he cannot be held answerable to a creditor of the firm, unless it is proved in some satisfactory manner that the plaintiff, at the time the ci’edit was given to the firm, had been induced to believe that the defendant was in fact a partner, by some act or declaration on his part which had come to the plaintiff’s knowledge, and upon the faith of which he gave the credit. This is succinctly stated in note 3 to section 65 of Story on Partnership. See, also, Pollock, p. 23. A person who is not really a partner may by act or declaration untruly, and without authority, represent himself as such to others, and thereby, under some circumstances, expose himself to liability as a member of the firm. (Pollock, 22.) Such act or declaration is known as “holding out” oneself as a partner; and upon the plain principle of houesty, such conduct estops a defendant from after-wards disclaiming the character he has thus voluntarily assumed. But such conduct will not entitle the plaintiff to recover against such a defendant unless it had previously “ been known to the person who seeks to make him liable; otherwise there is no duty towards that person.” (Pollock, pp. 23-4; 1 Taylor on Evidence, sec. 773.) Whatever force, therefore, the advertisement might be supposed to have, if it had previously come to the notice of the plaintiff’s intestate, the prayer properly stated that it could have no such effect unless he had been so apprised of it.

The third prayer raises the question as to the legal value of the proof, that the advertisement “ had been published in 'The National Intelligencer,’ a newspaper published in the city of Washington, and having a large circulation in Washington and its vicinity, three times ”; for there is no other evidence whatever upon the point presented to this court by the exception. There is, therefore, nothing before us to show that the plaintiff’s intestate lived “in Washington or its vicinity,” or that she took the paper, or had the opportunity of seeing the notice; and in the absence of such proof, the mere fact of the publication, in our opinion, was entirely insufficient, in the words of the authorities, “ to lead the jury to conclude ” that she had any knowledge that it had been published at the time of this transaction. The very point has been settled by the authorities here and in England. (2 Taylor, sec. 1479; Boyd v. McCann, 10 Md., 118.)

The bare fact of publication, then, being insufficient to enable the jury to conclude that the notice had come to the knowledge of the plaintiff’s intestate, the defendant had a light to ask that the jury should be instructed that there was a total failure of evidence upon the point. The instruction, as asked, was less favorable to the defendant than he was entitled to claim.

This position is fully sustained by the authorities, and we adopt as our own the language of the Court of Appeals of Maryland. (Clarke v. Dederich, 31 Md., 148.) “ The legal sufficiency of the evidence adduced to sustain the issue, or to establish any particular fact material to its determination, is a question of law and not of fact; and whenever it is so light and conclusive that no rational, well-constructed mind can infer from it the fact which it is offered to establish, it is the duty of the court, when applied to for that purpose, to instruct the jury that there is no evidence before them to warrant their finding the fact thus attempted to be proven.”

We therefore reverse the rulings excepted to, and remand the case for a new trial.  