
    Chaffee St. Amand & Croft, plaintiffs in error, vs. Rentfroe & Brother, defendants in error.
    The repeated admissions of B. R., who is sought to be charged as a partner of his brother, S. R., that he was interested with his brother in the grocery, before and after the giving of-the note in suit; that he complained of S. R.’s extravagance; proof that goods came to the place of business marked Rentfroe & Bro., within the knowledge of B. R., who claimed an interest in the goods so marked, is sufficient evidence of partnership to require a recovery against him, notwithstanding his plea of non est factum, not a partner, etc.
    Assumpsit., in Fayette Superior Court. Tried before Judge Hammond, at the September Term, 1860.
    This action was instituted by Chaffee St. Amand & Croft, against the firm of Rentfroe & Brother, composed of Burkett Rentfroe and Stephen Rentfroe, to recover the sum due on a promissory note, signed Rentfroe & Brother, payable to the order of the plaintiffs, dated Charleston, S. C., 8th February, 1857, due at four months, for $422 11.
    Burkett Rentfroe pleaded to the action, that he was not the partner of the said Stephen Rentfroe at the date of the note, or before, or since that time, under the style of Rentfroe & Brother, or any other style, and that the note was given without his knowledge, consent, or authority.
    On the trial of the case, the note was read in evidence, and it further appeared from the proofs made : That in the year 1856, Burkett Rentfroe said that he was a partner of Stephen Rentfroe in the grocery business in Fayetteville, and had been, all the way through; that the grocery of one Bosworth, and the Rentfroe grocery, were the only establishments of that kind in Fayetteville, in the summer of 1856, and Bosworth and Stephen Rentfroe agreed to, and did raise the price of liquors to ten cents a drink; that some time thereafter, Burkett Rentfroe went to Bosworth and asked him if he did not fear that the raising of the' price of liquors would injure both houses, and cause them to sell less and make less money than if the price were to remain as before, and gave as a reason for asking, that he was interested with Stephen Rentfroe, or had an interest in the grocery; that goods or groceries came to the Rentfroe house marked “Rentfroe & Brother,” and that Burkett Rentfroe was frequently about the grocery during the time that groceries thus marked were being received, and one of the witnesses thinks Burkett Rentfroe hauled some of the groceries thus marked on his wagon; that in 1857, the sheriff levied on the stock of groceries in the Rentfroe house, and Burkett Rentfroe asked him if he did not think it was wrong to lock up his (Burkett’s) interests in that way; that some of the groceries levied on were fresh, and some unopened, and some in a small room or closet, marked “ Rentfroe & Brother,” which Burkett Rentfroe claimed to have an interest in, and said he intended to interpose a claim to them, but afterward declined to do so; that Burkett Rentfroe said, on another occasion, that he had gone into the business with Stephen Rentfroe to give him á start, and that from the way Stephen was going on,' in extravagance in dress and in dressing his intended wife, it looked like it would ruin him (Burkett) as it was all coming out of him (Burkett); that there were debts against them,'which he (Burkett) would have to páy, and that Stephen had told him that certain debts had been paid which he (Burkett) afterward ascertained were not paid; that Burkett Rentfore, on another occasion, in a conversation about the grocery, said that he did not get any, or much profits.
    Upon this testimony the jury found for the defendant, Burkett Rentfroe, and against the defendant, Stephen Rentfroe.
    Counsel for plaintiffs then moved for a new trial, on the ground:
    
      That the verdict was contrary to law and evidence, and was without sufficient evidence to support it.
    The Court refused the new trial, and that refusal is the error alleged.
    Tidwell & Wooten, for plaintiff in error.
    A. W. Stone, eontra.
    
   By the Court.

Lyon, J.,

delivering the opinion.

We think that the motion for a new trial ought to have been allowed, as the verdict was without and against the evidence.

The defendant, Burkett Rentfroe, who denied the partnership, and in whose favor the issue was found, admitted repeatedly that he was interested with his brother in the grocery both before and after the execution of the note; complained of his brother’s extravagance; that he would ruin him; that it would come out of him; goods Came to the place where the business was carried on marked Rentfroe & Bro., within the knowledge of Burkett, and he clainfed himself as having an interest in said goods so marked; was frequently about the grocery, and claimed' an interest therein. All this was proved by 'a number of witnesses, and the plea was unsupported by any evidence of any character whatever.

Let the judgment be reversed.  