
    BOICE-RUNYON COMPANY, RESPONDENT, v. DANIEL DILLON, IMPLEADED, ETC., APPELLANT.
    Decided October 4, 1928.
    Before Gummere, Chief Justice, and Justices Parker and Katzenbach.
    For the appellant, William A. Kirk.
    
    For the respondent, Harvey Rothberg.
    
   Per Curiam.

This is a suit on a hook account of building materials sold and delivered. The suit was against the appellant, Dillon, and one Otto Olsen jointly, on the theory of partnership or joint adventure; and there was a judgment against both defendants; Olsen does not appeal.

Two grounds of appeal are assigned — that the verdict was against the weight of evidence, and that the trial court erred in refusing to nonsuit as to Dillon. The first of these, on well-settled principles, is not cognizable on an appeal. As to the refusal to nonsuit, it is urged that there is no evidence to connect Dillon with Olsen as a partner or joint adventurer. We find that there was abundant evidence on that point — for example, that Dillon himself assumed responsibility as a joint and several obligor, ordered material for the particular job, &c., and the direct testimony of Olsen called for the plaintiff, that he and Dillon “were partners on a fifty-fifty basis.”

In this state of the evidence it would have been clear error to nonsuit, and the motion was properly denied.

This leads to an affirmance of the judgment.  