
    George Lunham, Respondent, v. Leopold Hafner and Frank C. Kohart, Appellants.
    
      Partnership — chu/rge to the jury as to the effect of retaining, hut not signing, apart•nership agreement — effect of preliminary ■negotiations intended to he reduced to-writing.
    
    Upon' the trial of an action it appeared tlmt an agreement of partnership had been prepared by the defendants and was submitted to the plaintiff, and was-retained but never signed by him.
    In regard to the effect of this instrument the court first charged the jury that “if the understanding was that no partnership should he created unless the terms-thereof were reduced to writing and signed by the parties, it is of no consequence whether the plaintiff retained it or not, because it is conceded that he did not sign it; if, however, the writing was in the nature of a memorandum, which was intended to crystalize and embody the verbal contract, then the fact that he retained it without returning it, and without any objection, is evidence that he was satisfied with the verbal contract.”
    At the close of the charge the counsel for the plaintiff requested the court to instruct the jury that " if at the time the contract was handed by the defendants to the plaintiff it was understood that the plaintiff lmd the option to sign it or not, then the retention oí the contract by plaintiff did not bind him ; nothing but his actual consent, expressed by signing and delivering the contract, can bind him.”
    To this request the court replied, “I have substantially charged that,” and the defendants excepted.
    
      Jfeld, that while the charge contained in the request was incorrect it did not require a reversal of the judgment, as the jury could not have been misled, but must have understood that the proposition that the plaintiff could only he bound by signing and delivering the agreement of partnership was true only in case it was the intent of the parties that no partnership should come into, existence unless- the paper was executed;
    That if the talk between the plaintiff and the defendants relative to the partnership was intended by the parties simply as a negotiation which was to lead to. a written agreement, then there was no partnership.
    Appeal by the defendants, Leopold Hafner and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of January, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.
    
      
      Roswell W. Keene, for the appellants.
    
      Abel E. Blachmar, for the respondent.
   Willard Bartlett, J.:

For several years prior to the 1st day of January, 1895, the defendants carried on the business of manufacturing jewelers in the city of New York, under the firm name of Hafner & Kohart, and the plaintiff was in their employ as a salesman. At that date there was due to him from the defendants, for unpaid salary and commissions, an amount which was agreed upon between them as being $1,550. This suit was brought in October, 1895, to recover that amount. The defense was that the plaintiff became a partner of the defendants in the jewelry business on or about the 1st day of January, 1895, for one year; that his contribution to the capital of the firm was the balance of $1,550 already mentioned; that the term of the co-partnership would not come to an end until the 1st day of January, 1896, and that under the agreement between the parties no portion of the $1,550 was payable to the plaintiff until the end of the year. These averments the plaintiff met by proof which must have satisfied the jury that, although negotiations had been entered into for the admission of the plaintiff into the firm, those negotiations had never resulted in the actual formation of a partnership of which the plaintiff became a member, and the plaintiff succeeded in obtaining a verdict for the full amount of his claim.

¥e cannot disturb this verdict upon the facts, for there is sufficient proof tending to sustain it. Numerous exceptions were taken to the rulings of the trial court upon questions of evidence. I have examined every one of these exceptions and find none tenable. The evidence excluded or stricken out was objectionable, because it was immaterial, or hearsay, or irresponsive, or the opinion of one not an expert, or because it attempted to bind the plaintiff by statements not shown to have been made witn his authority, or because it involved merely tlio conclusion of the witness instead of a statement of the facts.

There are two exceptions to the judge’s charge which require notice. A written contract of partnership was prepared by the defendants and submitted to the plaintiff, but never signed by him although he kept it. While the form of the proposed agreement indicated that it was prepared with the idea that it should be signed by the parties, the theory of the defendants on the trial appears to have been that this elaborate paper was intended merely to serve as a memorandum of the terms of the co-partnership without being-signed ; and their counsel seems to have laid great stress upon the plaintiff’s retention of the instrument as evidence that such was the fact. At the close of the charge the counsel for the plaintiff requested the court to instruct the jury as follows: “ If at the time the contract was handed by the defendants to the plaintiff it was understood that the plaintiff had the ojition to sign it or not, then the retention of the contract by plaintiff did not bind him ; nothing but his actual consent, expressed by signing and delivering the contract, can bind him.” To this request the trial judge responded: I have substantially charged that,” and the defendants duly exceptedi It is true that, taken by itself, the statement that nothing but the actual consent of the plaintiff, expressed by signing and delivering the proposed contract of partnership, could bind him, was not an accurate statement of the law applicable to the case ; but a reference to wliat the court had said in the body of the charge, and to what was said after this request was passed upon, shows that the jury could not have been misled, and must clearly have understood that the proposition that the plaintiff could only be bound by signing and delivering the agreement of partnership, was true only in case it was the intent of the parties that no partnership should •come into existence unlesshhe paper was executed. Tims, the court said: “ If the understanding- was, that no partnership should be created unless the terms thereof were reduced to writing and signed by the parties, it is of no consequence whether the plaintiff retained it or not, because it is conceded that he did not sign it. If, however, the writing was in the nature of a memorandum which was intended to crystallize and embody the verbal contract, then the fact that he retained it without returning it, and without any objection, is evidence that he was satisfied with the verbal contract.”

The other exception is to that portion of the charge embodied in the fifth request of the plaintiff, which was in these words: “ If the talk between plaintiff and defendants was intended by the parties to be simply negotiations which were to lead to a written agreement, then there is no partnership and plaintiff cannot recover.” The “ not ” in the last clause of this instruction was probably a clerical error, for the proposition in the form in which it appears in the record before us was favorable, rather than unfavorable, to the appellants. If we assume, however, that what the court did say, was, that the plaintiff could recover, if the talk between the parties was intended to be simply preliminary to a written agreement, the statement was correct as matter of law, and furnishes no ground for a reversal of this judgment.

Judgment and order affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  