
    Samuel Osborne v. Richard Brennan, Sen.
    To charge a person as a partner, one of two things is necessary, viz., he must have permitted his name to he used as one of the firm, thereby holding it out as a security to the community; or he must have participated in the profit or loss.
    This case came before the Court on the following report of the Recorder of the Inferior City Court:
    “ This action was brought against the defendant, as survivor of the firm of Brennan & Stone, upon the ground that Brennan was a dormant partner.
    “The evidence produced to establish the .partnership, consisted of two letters written by the defendant to Mr. Stone, and the depositions of a Mr. Murray, examined under written interrogatories. The letters merely show the consignment of certain articles to Stone, by the defendant, with some directions respecting their disposition. Mr. Murray said that John Stone kept a store in Beaufort, which was supplied with goods by the defendant; and that he, witness, was present when an agreement was entered into between the defendant and Stone, respecting the articles consigned. The answer of the 6th inter-*A9Rl rogatory being objected to, as containing inadmissible testimony, *and the objection being sustained, no other evidence than the foregoing was offered in support of the action.” He remarks, that he observed to the jury, “ that to render the defendant liable as a dormant partner, it was incumbent upon the plaintiff to prove that the deceased, Stone, and himself, divided the profit and loss of the property disposed of by the deceased; or that the defendant had allowed the deceased to hold him out as jointly concerned with him; that these requisites had not been established, and that nothing more had been shown than that the defendant furnished Stone with goods, as he might any other shopkeeper. I, therefore, thought the defendant was entitled to a verdict.”
    The jury found for the plaintiff.
    The grounds taken on a motion for a new trial, were :
    1. That there was not sufficient evidence on the part of the plaintiff, to prove the existence of any copartnership in business between the defendant and the deceased, John Stone, so as to make the defendant responsible as a surviving partner.
    2. That if there was evidence of any connection in business between the said parties, there was none to prove the plaintiff’s demand to be on the account of such concern, or within the sphere of their transactions.
    3. That the evidence, on the part of the plaintiff, consisting of letters written by him, to the deceased, John Stone, proved the transaction to be merely a consignment of the articles by the defendant to J. Stone, to be sold on his (defendant’s) account, disproving an actual sale to the said J. Stone, as alleged by the plaintiff, and showing the transaction to be very different from the species of business attempted to be proved to have been carried on by the defendant and J. Stone, at Beaufort.
    •4. That the verdict of the jury was against the charge of his Honor the presiding judge.
    5. That the verdict was generally contrary to law, and the evidence adduced at the trial.
    
      Lance, for the motion. Dunhin, contra.
   *The opinion of the Court was delivered by [*429

JohnsoN, J.

To charge a defendant as a partner, one of two things is necessary, either he must have permitted his name to be used as one of the firm, thereby holding it out as a security to the community, or he must have participated in the profit or loss.

The first of these is directly contradicted by the evidence of the plaintiff. The goods are charged to Stone, alone,- in the plaintiff’s books, and it follows, mast have been delivered on his credit.

If the defendant be liable, then it is in respect of his participation in the profit and loss of the house at Beaufort, and of this there is not the least proof. If the bare fact of supplying a house with goods be sufficient evidence of a copartnership, the whole commercial world would constitute but one family and one firm. However grand in theory this state of things might appear, it would be found too unwieldy for practical uses.

The evidence in this ease furnish no other fact from which the existence of a partnership can possibly be inferred. It follows, therefore, the verdict is wholly without evidence, and a new trial ought, I think, to be granted.

Nott, Bat, BjchaRDSOn and Huger, JJ., concurred.

2 Bail. 109 ; 4 Rich. 312.  