
    *Wilkinson v. Jett.
    January, 1836,
    Richmond.
    (Absent Cabell, J.)
    [30 Am. Dec. 493.]
    Assumpsit — Sub-contract to Carry Mail — Evidence-Certificate of Post Master General of Default — Admissibility. — In assumpsit by J. a sub-contractor, against W. a contractor for ca.rr.vimt the mail of D. States, for J.'s proportion of the compensation received from the post oiiice department, a letter of the postmaster general is offered in evidence by defendant, and read without obj ection, to prove defaults committed by plaintiff in executing that part of the contract which was under-let to him; to repel which evidence, plaintiff offered a certificate of the post master general shewing the defaults, and the times and places where they occurred; and defendant objects to the reading- of this certificate: Híih), the certificate was not competent evidence to any purpose.
    Evidence Admissibility. -Plaintiii'is consent to the admission of incompetent evidence for defendant, is no reason for admitting other incompetent evidence for plaintiff, to which defendant obiects.
    Partnership — What Constitutes. — A contractor for carrying the mail agrees with a sub-contractor, that he shall perform one half the service, and be entitled to one half the compensation: Help, such agreement does not constitute a partnership between the parties.
    Assumpsit by Jett against Wilkinson, in the circuit court of Brunswick. The declaration alleged, that the defendant Wilkinson, being the sole contractor with the post master general of the Ü. States, for carrying the mail for a short term, on two several and distinct mail routes, once a week, for 988 dollars, agreed with the plaintiff Jett, that if he would execute one half of the contract, by carrying the mail on each route, alternately, every other week, the defendant would pay over to him one half of the stipulated compensation of 988 dollars, as soon as the defendant should receive the same from the post office department; and that the defendant, having before that contract had expired, made another contract with the post master general, whereby the department agreed to allow him, for carrying the mail, once *a week, on the same two routes,_ for a term of four years from the expiration of the first contract, the sum of 1450 dollars per annum, payable quarterly, agreed likewise with the plaintiff, that if he would execute one half of this contract, by carrying the mail on each route, alternately, every other week, the defendant would pay over to him one half the last mentioned stipulated compensation of 1450 dollars per annum, as he should receive the same; and the plaintiff averred, that he executed these agreements on his part; and that the defendant received from the department, 988 dollars under the first contract, and 1450 dollars per annum, quarterly, under the second contract; by reason whereof the defendant became indebted to the plaintiff, one moiety of the sums of money so by him received from the department; and being so indebted, in consideration thereof, assumed to pay him the same &c. Plea, the general issue.
    At the trial, the defendant filed two bills of exceptions to opinions of the court. 1. The plaintiff having offered evidence to prove the agreements between him and the defendant, alleged in the declaration, the defendant moved the court to instruct the jury, that those agreements constituted a partnership between the parties, and that no action at law could be maintained bjT the one partner against the other; but the court refused to give the instruction, and instructed the jury, on the contrary, that the agreements did not constitute a partnership between them; to which the defendant excepted. 2. The defendant on his part, in order to prove negligence and misconduct of the plaintiff, in carrying the mail, under his agreements with the defendant, offered in evidence a letter from the post master general, and other evidence to prove such negligence and misconduct; whereupon the plaintiff, in order to prove that the complaints of irregularities in carrying the mail on the routes, which had reached the department, arose x'from the defendant’s own defaults in carrying the mail, at the times when he was bound to carry the same, offered in evidence a certificate of the post master general, under the seal of the department, setting forth those irregularities, and pointing out the times and places of their occurrence; to the admission of which certificate in evidence, the defendant objected; but the court permitted the certificate to be read to the jury, as evidence of the fact that complaints were made to the department, as stated in the certificateand the defendant excepted.
    Verdict and judgment for the plaintiff, for 276 dollars with interest &c. from which the defendant appealed to this court.
    Johnson, for the appellant,
    admitted, that the circuit court was right in holding, that there was no partnership between the parties. But he objected, that the post master general’s certificate was not competent evidence for any purpose, and it was error to admit it.
    Taylor, for the appellee,
    said, that neither the post master general’s letter, which was offered by the defendant and admitted as evidence on his part, nor the certificate from the department, offered in evidence for the plaintiff, were proper evidence. But after the letter had been admitted as evidence for the defendant, it might have been proper enough to admit the certificate as evidence for the plaintiff; since, for aught that appeared, the certificate might have been, and most probably was, only explanatory of the letter.
    
      
      Admission of Improper Evidence — Right of Opposing Parly to Introduce Evidence in Contradiction. — On this cuestión. the principal case is cited in foot-note to Charlton v. Unis, 4 Gratt. 68; McDowell v. Crawford, 11 Gratt. 386. 409; Sands v. Com.. 21 Gratt. 903.
    
    
      
       Partnership -What Constitutes. — The principal case is distinguished in Cole v. Moxley, 12 W. Va. 746. See monographic note on “Partnership.”
    
   PEE CURIAM.

The circuit court erred in admitting the certificate of the post master general mentioned in the second exception, as evidence on the trial. The letter of that officer, mentioned in the same exception, was inadmissible as evidence for the defendant, except by the plaintiff’s consent: but his having consented that the letter should be read in evidence for the defendant, *was no sufficient reason for admitting the certificate as evidence for the plaintiff, without the defendant’s consent, since it was not legal evidence. Therefore, judgment reversed, and cause sent back for a new trial.

BROOKE, J.,

agreed, that the judgment should be reversed, but on a different ground. He said — As to the first exception, the circuit court was right in deciding, that the agreements did not constitute a partnership between plaintiff and defendant. In the second exception, I think the evidence is too perfectly stated. It is stated, that the defendant introduced a letter from the post master general, and other evidence, to prove defaults in the plaintiff; but neither the letter, nor its purport, is set out, nor what was the other evidence to prove the misconduct of the plaintiff. And as the letter was not objected to by the plaintiff, I am not sure that the certificate <?f the post master general, introduced for the plaintiff, was not admissible to explain the letter introduced by the defendant. At least, after the defendant had introduced the letter, which was improper evidence,

I am not satisfied, that it lay in his mouth to object to the certificate to explain it. I think the cause should be sent back, for uncertainty in the second bill of exceptions.

Judgment reversed.  