
    Brown & Bliss v. Rains et al.
    1. Evidence: partnership: declarations. In an action to charge a defendant as a member of a partnership, it was held that neither the declarations of his alleged partner, made without his knowledge, nor the fact that he was generally reputed to be a member of the firm, were competent to prove the existence of the partnership.
    
      Appeal from Mills Ci/rcmb Court.
    
    Wednesday, March 17.
    Action upon an account for goods sold by plaintiffs to the defendant T. E. Eains. At the time of the sale Eains was doing business as a merchant, in his own name, in the town of Malvern, Mills county, and purchased the goods for which the plaintiff’s account accrued for the purpose of replenishing his stock. lie does not deny the correctness of the account and makes no defense. The question in the ease arises upon the alleged liability of Rains’ co-defendant Summers. The plaintiffs aver that at the time of the sale of the goods to Rains Summers was a partner with Rains, and as such partner was interested in the purchase and became liable to pay for the goods. Summers denies all the allegations of the petition made for the purpose of charging him with liability. There was a trial by jury and verdict for the plaintiffs. The defendant Summers appeals.
    
      Watlmis & Williams, for appellant.
    
      Hale, Stone c& Proudfit, for appellees.
   Adams, Oh. J.

The goods in question were sold in October, and November, 1877. Prior to August, 1876, and while the defendant Rains had been carrying on the same business in the same place, Summers was interested in the business with ■ him as a partner. But in the month of August, aforesaid, the evidence tends to show that the partnership was dissolved. The business, during the time that it is admitted that the partnership existed, was done in the name of T. E. Rains alone, and no change in that respect took place.

To prove that the partnership between Rains and Summers continued after August, 1876, the plaintiffs introduced witnesses to prove the declarations of Rams, made without the knowledge of Subainers. To this evidence Summers objected. But the objection was overruled and the evidence admitted. We think that the evidence should have been excluded. If one person can be held as the partner of another simply upon' the declarations of the other, who may be interested to obtain credit upon the strength of the declarations, there would be no safety for any one. The court, in its instructions, indeed held that a partnership could not be thus proven, and ruled that the declarations were admissible only for the purpose of impeachirig Rains as a witness. But no proper foundation was laid for Ms impeachment. Besides, we see nothing in his proven declarations necessarily inconsistent with his testimony. It is not shown that his declarations related to a time subsequent to August, 1876.

This being so it might, perhaps, be thought that the admission of testimony in regard to the declarations was without prejudice; but we think otherwise. The testimony was well calculated to confuse and mislead the jury.

Eor the purpose of’ proving the continuance of the partnership after August, 1876, evidence was admitted against the appellant’s objection to the effect that they were reputed to be partners. In this we think that the court erred. The fact of a partnership cannot be proven by reputation.

The court instructed the jury, in substance, that notwithstanding the partnership might have been dissolved in August, 1876, yet if Summers concealed the fact for ’ the purpose of giving Eains credit, and it was understood in the community that the partnership still continued, Summers might be liable.

In giving this instruction we think that the court erred, because we think that it was inapplicable. No question arises as to whether Summers held himself out as a partner and thereby became liable without being one, because, as the evidence shows, the credit was not given upon the supposition that he was a partner. A person can be held as partner where he is not a partner only where his conduct has been such as to mislead creditors, and estop him from showing the truth.

Beversed. I. Upon the calling of the grand jury at the term when the indictment was found, eight jurors did not ap-  