
    Bright v. Higgins, Appellant.
    
      Partnership — Interest in partnership — Evidence — Charge of court — Harmless error.
    
    In a suit between partners to recover tbe alleged interest of the plaintiff, evidence is admissible that the plaintiff gave to the defendant a check for the amount of money standing to the credit of his own business, upon its merger with that of the defendant.
    It was also proper to admit in evidence that certain furniture and fixtures of the defendant’s former business had been burned in a fire, which destroyed the alleged consolidated business, and that the defendant had collected the fire insurance thereon.
    When the question at issue was not the amount of the defendant’s interest, but rather that of the plaintiff, the fact that the court referred to the amount of the defendant’s interest is immaterial error and will not be ground for reversal, particularly when such error was not called to the attention of the trial judge at the conclusion of his charge.
    Argued October 27, 1920.
    Appeal, No. 149, Oct. T., 1920, by defendant, from judgment of C. P. Northumber-land County, Sept. T., 1919, No. 263, on verdict for plaintiff in the case of David J. Bright, noAV for the use of
    Sarah E. Bright, v. George J. Higgins.
    Before Qrlady, P. J., Porter, Henderson, Head, Trexler, Keller and Linn, JJ.
    Affirmed.
    Assumpsit to recover amount due for interest in an alleged partnership. Before Cummings, P. J.
    Prom the record it appeared that the plaintiff had been engaged in the business of running a moving picture house in Shamokin, Northumberland County. The defendant was the owner of the property on which the theatre was erected and leased the premises to the plaintiff. The business proving unprofitable, negotiations were started Avith another moving picture theatre whereby the plaintiff’s business was to be taken over and the two theatres consolidated into one. The defendant was interested in the ownership and management of the consolidated theatre, and under the negotiations it was understood that be should take over the fixtures and pay the debts of the plaintiff’s theatre. The plaintiff claimed that the defendant agreed to pay him the amount he alleged to have in the property, namely, $1,000. The defendant denied having made such agreement.
    Verdict for plaintiff for $935 and judgment thereon. Defendant appealed.
    
      Errors assigned were various rulings on evidence and the charge of the court.
    
      William W. Ryon, and with him Albert Lloyd, for appellant.
    
      W. H. Under, and with him W. Lloyd Snyder, for ap-pellee.
    March 5, 1921:
   Opinion by

Henderson, J.,

The first and second assignments relate to the admission of evidence against the defendant’s objection. We regard these offers of evidence as clearly admissible on the theory on which the plaintiff’s action proceeded. If he and his partner, Treibley, turned over their property in the Empire Theatre to a new company in which they were to be partners, and in which the defendant had a larger interest than any other of the proposed members, it was competent to show that the plaintiff gave the defendant a check for a balance of money which the Empire Theatre had in the bank. It tended to confirm the plaintiff’s statement that a business transaction had taken place between him and Treibley on the one part, and the defendant on the other, growing out of the ownership of the theatre by the plaintiff and his partner. The evidence covered by the second assignment tends to show that the defendant repudiated the alleged partnership arrangement and that when the Majestic Theatre, to which the furniture and fixtures of the Empire Thea-tre tad been taken, was burned, te collected tte fire insurance on tte premises. Assuming tte statement of tte plaintiff; to be correct, ttis was evidence directly in line witt tis statement of claim and tended to support tis cause of action. It was not introduced as evidence of tte partnerstip, but to stow a contribution by tte plaintiff to tte consolidated tteatre enterprise, wtict contribution was an inducement to tte defendant’s contract to pay tte plaintiff $1,000 as asserted in tte statement of claim.

In tte ttird assignment a part of tte ctarge of tte court is criticised in wtict tte court in commenting on tte evidence stated ttat in tte arrangement for tte new partnerstip, Mr. Higgins was to tave a two-seventts interest in tte new tteatre. It seems ttat tte court was incorrect in referring to a definite proportion of interest, but we do not regard ttis material error. Tte question was not so muct one of tte extent of tte interest wtict tte defendant tad, as ttat wtict tte plaintiff tad. Tte plaintiff's case rested on tte circumstance ttat tte plan for tte new partnerstip in tte consolidated tteatre gave tim an interest; ttat tte defendant was also interested in tte venture; and ttat subsequently tte latter refused to enter into tte contract in writing for tte partnerstip, took possession of tte property, and collected tte insurance on it wten it burned. Witt ttis state of facts as a consideration, evidence was offered to stow tte promise of tte defendant to pay to tte plaintiff tte sum of $1,000 wtict was agreed upon as tte value of tis interest in tte business. It was ttis promise supported by tte consideration referred to wtict constituted tte plaintiff’s claim. Tte inadvertent reference by tte court to tte proportion of interest wtict tte defendant tad as alleged by tte plaintiff was tarmless. If tte defendant secured tte possession and control of tte property of tte plaintiff in arranging for tte partnerstip, and ttere-after refused to enter into tte written contract intended to carry out the plan, and at a later time asserted and exercised individual ownership over the business and collected the insurance in that capacity, this would create a liability to the plaintiff, if the other statements alleged by the latter were believed by the jury. Moreover, the attention of the court was not called to the incorrectness of this statement in the charge. If it were important, the trial judge should have had an opportunity to correct it. The case turned on the parol testimony and was clearly one for the jury. We find no reversible error in the record.

The judgment is affirmed.  