
    Lemuel B. Gregory v. Andrew Martin, Admr.
    . 1. Partnership—sufficiency of evidence to show. Where two persons purchased a mill and house, which they commenced to remove, but before the removal, one of them died, it was held, the general declarations of the deceased that they had bought the mill in partnership, no terms of partnership being stated, did not afford satisfactory evidence of the existence of a partnership, as such declarations might well consist with there being nothing more than a tenancy in common.
    3. Same—evidence of a settlement. Where A and B purchased a mill and house, for which A turned in two mules, a wagon and harness, in payment for his half of the price, and then died at B’s house, while the mill was being removed to B’s, and at the appraisement of A’s estate, B brought to the appraisers other property, and had the same appraised as A’s property, agreeing that if there was any difference in favor of the estate between the property thus produced for appraisement and that which A had paid on their joint purchase, he would pay it, and if it was in his favor the estate should pay him, it was held, in a suit by the estate to recover the difference, that the conduct of B, in producing the property for appraisement, and statements made, might properly be considered by the jury as tending to show a settlement and promise between A and B, before A’s death.
    Appeal from the Circuit Court of Wayne county; the Hon. Tazewell B. Tanner, Judge, presiding.
    Mr. James McCartney, for the appellant.
    Messrs. Robinson, Boggs & Johns, for the appellee.
   Mr. Justice Sheldon

delivered the opinion of the Court:

James Martin and Lemuel B. Gregory purchased a mill at or near Iuka, in Marion county, in this State, in payment for one-half of which Martin turned in two mules, and a wagon and harness.

The mill was taken down at Iuka, and they had commenced hauling it to Gregory’s place, to be put up there. While so engaged, Martin was taken sick, and died in a few days afterward at Gregory’s.

Andrew Martin, the appellee, was appointed administrator of the estate of James Martin; and while the appraisement of the estate was being made, Gregory brought to the' appraisers two mules, a wagon and harness, and wanted them appraised as James Martin’s property, and said if there was any difference between them and the property James Martin turned in on the mill, if it was in his favor the estate should pay him, and if it was in favor of the estate he would pay it. The property was sold with the other property belonging to the estate of James Martin.

This suit was brought by the administrator, against Gregory, to recover for the alleged difference in value between this property and that which James Martin turned in toward payment for the mill. The suit was originally brought before a justice of the peace, where plaintiff recovered. Defendant appealed to the circuit court, where there were three successive verdicts rendered against him, the last one for $75, from the judgment whereon defendant took this appeal.

The principal ground insisted upon for the reversal of the judgment is, that the great preponderance of the evidence showed that there was a partnership between James Martin and Gregory in the mill, and hence this action would not lie. The evidence as to any partnership consisted wholly of the respective declarations of James Martin and Gregory, and that was conflicting, those of Gregory going to show that there was no partnership, those of Martin that there was one. These latter declarations of Martin were not very satisfactory evidence of the existence of any real partnership. They were mere general declarations that they had bought the mill in partnership. No terms of any partnership were stated. Such declarations might well consist with there being nothing more than a tenancy in common between them of the property. Nothing was done more than to make the purchase of the mill, and to commence the removal of it to Gregory’s place.

We do not think it a case where a court is called upon to disturb the finding of the jury, upon the evidence.

This instruction was given for the plaintiff:

“That even if the jury believe, from the testimony, that the deceased and the defendant were partners, yet if they further believe that such partnership was settled up, and the amount due from one partner ascertained, and a promise, expressed or implied, made to pay the saíne, that the estate may recover such amount.”

Objection is taken to it, that it does restrict the settlement and promise named to the time before the death of James Martin; but there having been so little done in this mill enterprise, and as Martin being at Gregory’s in his last sickness, and dying there, there might be ground of inference with the jury, from the conduct of Gregory in bringing the property before the appraisers, and his statements there made to them, that there had been such a settlement and promise between Gregory and the deceased, before his death, we can not regard the instruction here as fatally defective in the particular named.

We are of opinion the judgment should be affirmed.

Judgment affirmed.  