
    [Pittsburg,
    September, 1824.]
    ALLEN and another against ROSTAIN.
    IN ERROR.
    Where a general partnership is alleged by the plaintiff, and denied by the defendants, who admit a special partnership, a subscription to the stock of a Naviga ■ tion and Insurance Company, made in the name of the firm by the partner denying the general partnership, may be given in evidence by the plaintiff', as one step towards proving a general partnership.
    A party cannot assign that tor error from which he has sustained no injury. Therefore, if the court permit an improper question to be put to a witness, who is unable to give any answer to it, it cannot be assigned for error.
    The party who put the question, has a right to have the answer of the witness placed upon the record.
    If counsel are of opinion, that their case may be taken out of a general rule of law, by any particular circumstances, they should propose those circumstances hypothetically, and ask the opinion of the court upon the law. If they omit to do so, they cannot assign for error, that the court in laying down a general rule of law correctly, have done so too broadly for the circumstances of the case.
    How far an agent, who contracts in his own name, without disclosing his principal, is liable personally
    If the court, after instructing the jury as to the nature of partnerships, leave it to them to decide, from the evidence, whether one of the defendants had a right to bind the other in the contract in question, it is not error.
    Nor is it error to leave it to the jury to infer an acquiescence in the contract by one of the defendants, where the evidence shows consent only before, and not after the contract A judgment is not to be reversed on a verbal criticism.
    A contract made by an agent of the plaintiff' with the defendants personally, for the transportation of goods on freight, is not affected by the fact, that another agent of the plaintiff', to whom the goods were consigned, knew that the boat in which they were shipped, belonged to another house, for whom the defendants were agents.
    On a writ of error to the court of Common Pleas of Allegheny county, the record presented the following case.
    
      Fournier Rostain, the defendant in error, brought an action against Michael Allen and George Grant, trading under the firm of Allen and Grant, to recover damages for the loss of a quantity of merchandise, shipped by them for Nashville, Tennessee, on board a keel boat, which was sunk in the river Monongahela, off the city of Pittsburg.
    
    The declaration contained two counts: one, against the defendan tsas common carriers; the other, upon their special undertaking, safely to keep and deliver, for a reward, the goods in question: The plea was non assumpserunt, on which issue was joined.
    The plaintiff offered to prove the special undertaking laid in the second count of the declaration, by the declarations of Michael Allen, one of the defendants, in the absence of his co-defendant. This testimony was objected to, as inadmissible, until the plaintiff had proved a partnership between the defendants in the business of freighting and transporting goods, or some other authority in Allen to bind Grant. The court sustained the objection, and overruled the evidence. The. plaintiff, for the purpose of laying a foundation for the introduction of evidence of Mien’s undertaking, produced the following testimony. John Darragh swore, that he had dealt for some years with the defendants, under the name of Mien and Grant, and considered them as commission merchants of capital and standing: That he had sold them a great deal of merchandize, to fill orders for their correspondents, and had also sold to them on their own account: That he knew of their buying and selling merchandize on their oion account frequently, such as iron, sugar, salt, &?c., and that this practice was customary among all the commission merchants of Pittsburg: That the defendants were reputed among the merchants of the place, to be commission merchants, and that their business consisted in buying and forwarding goods: That their sign was Mien and Grant: That in the Bank of Pittsburg, they had an account opened in the name of the firm, and signed and endorsed notes under that name, and that the witness never knew or heard of their having freighted goods, until the present dispute arose. The following question was then put to the witness by the plaintiff’s counsel, “Was it the general reputation, that the defendants dealt as partners in any business or speculation, in which capital might be advantageously employed ?” This question was objected to on the part of the defendants, but the court overruled the objection, and the defendants tendered a bill of exceptions.
    The plaintiffi after having proved, by the testimony of William Hill, two specifications of the firm of the defendants, taken from the banks in the city of Pittsburg, offered in evidence the signature of the defendants’ firm, written by George Grant, to a subscription paper, for fifty shares in the Pittsburg Navigation and Insurance Company. This evidence was objected to by the defendants, but admitted by the court, whose opinion was again excepted to. The witness then proceeded to state, that the company to which the subscription paper referred, was formed for the purpose of lowering the price of freight, which the freighters were at that time in the habit of charging, but the company did not continue in operation more, than two or three months: That the defendants were engaged in the commission business, and also in the general purchase and sale of all articles that might offer in the market: That there were very few commission houses in Pittsburg that did not extend their business, beyond mere commission business: That the notes of the defendants were good in the market, and their credit undoubted: That he never knew or heard of a note of their’s except for purchases, and never knew or heard of their being concerned in freighting except once, when it was understood, that the steam-boat Dolphin was chartered by them, and loaded principally with their own goods; and that he never knew them to be engaged in taking goods on freight or for hire.
    
      David Logan, another witness on the part of the plaintiff stated, that some time before the boat on board of which the plaintiff’s goods were shipped arrived at Pitlsburg, Mr. Grant, one of the defendants, called on the witness, and said he would have a boat to load for Nashville, and inquired if the witness had any goods for freight: That the witness asked him, who would sign the receipt, to which he replied, “ we will :” That Mr. Allen, the other defendant, afterwards spoke to the witness, and said, that the boat belonged to a gentleman in Nashville, and that they were loading her: That when the witness got the goods, he sent them on board, and did not inquire who were the owners of the boat, as he was satisfied when Mr. Grant said they would sign the receipt: That the conversation with Mr Grant, was a good while before the witness sent the goods, and before the boat came down the river, and Mr. Grant also said, that the boat belonged to persons in Nashville: That when he put the goods on board, he did not get any receipt, and when the boat sunk he got his goods back: That Grant might have mentioned the names of Gordon and Walker: That he never knew Allen and Grant as freighters, and never brought a suit against Allen and Grant. Allen offered to sign the receipts as agent, after the accident happened, which the witness declined. He did not say any thing to Allen about relying on the responsibility of the defendants, though that was what he did rely upon, and not upon Gordon and Walker.
    
    After the above-mentioned witnesses had been examined, and others, whose testimony tended to establish nearly the same facts, the plaintiff again offered to prove, by the oath of Heiram Bonnett, the special undertaking laid in the declaration, made by Allen alone, in the absence of Grant. This evidence was objected to by the defendants on the same ground as before; but the court admitted the evidence, and a bill of exceptions to their opinion was taken.
    The witness, who was the agent of the plaintiff, proved, that he contracted with Allen for the transportation of the goods of the plaintiff, as he understood, for the house of Allen and Grant, on their own account, trusting to them only, and not considering them as agents of the house of Gordon and Walker. The goods were consigned to one Latapie, of Nashville, another agent of the plaintiff, who was in Pittsburg at the time they were shipped, and who, it appeared, knew that the boat belonged to Gordon and Walker.
    
    The defendants examined several witnesses, to prove that they were never concerned in the business of carrying goods on freight on their own account, and that they acted in this business as the agents of the house of Gordon and Walker.
    
    The President of the Court of Common Pleas, delivered to the jury an elaborate charge, embracing a view both of the facts given in evidence, and of the law arising upon them. So far as it is now material, it was as follows:
    “Three points have been made during the trial.
    
      <f 1. Was the disaster by which the loss happened of that kind, and did it occur in such a manner, as to render the freighters liable?
    
      “2. Was there any personal responsibility created by what passed between Mr. Bonnett and Mr. Mien ?
    
    
      “ 3. If there was a personal liability, does it fall on Mien alone, or on Mien and Grant?
    
    “ I think the testimony is strong, and probably satisfactory to your minds, that in this unlucky business, Mien and Grant, did act as the agents of Gordon and Walker; and in solving the second question, I am willing to consider them as agents.
    “ An agent, general or special, may render himself personally responsible for a contract made for his principal. He must take care that in his contract and undertakings, he represents himself and deals as an agent. It is his duty to be cautious how he executes his agency.
    “The person who makes a contract, or comes under any obligation, is to be considered as contracting for himself. And in order to avoid this inference, and' that he may not encounter the hazard of being personally responsible, he himself should draw the distinction, and let it be known, whether he acts for himself or for another. A contrary doctrine would be most dangerous and unjust ; because, after a contract is made, and the question of liability or payment for a serious loss arises, the person who made the contract ought not to be permitted to come out and say, ‘ Why, I have nothing to do with this, I was a mere agent, my principal is A. B. or C., and lives in Nashville, Orleans, or London.’ Although the agent may render himself personally liable, by his manner of dealing, yet the principal would still be answerable to him.
    “Now, my mind being satisfied, that Mien and Grant were the agents of Gordon and Walker in this transaction, let us examine what the facts are, which bear upon this particular pofnt, and ascertain whether the language and conduct of Mr. Mien to Mr. Bonnett, were those of an agent, and such upon the legal principles I have mentioned, as will avoid all personal liability? And to these principles I will leave it to you to apply the facts.
    “The circumstances are these: (His honour here stated what took place between Mien and Bonnett.)
    
    “ Then it appears that nothing very formal took place between Mien and-Bonnett; what did occur, however, appears to be "usual when our merchants ship goods — for, sometimes, the receipt is not signed until after the boat sails. To make an undertaking of this kind binding, no precise form of words or writing is necessary. What was the intent and undertaking of the parties ? One man asks another for freight to a particular place; the freight is' promised, sent to the boat, received and stowed away. Do not these facts .satisfy your minds, that there was an undertaking to carry and deliver? An undertaking for which some one ought to be responsible? Who is that person? Can there be a disposition any where: to disbelieve Mr. Bonnett, when he tells us, ‘he never heard who owned the boat, (he appears to have been confined by lameness,) he never heard of the names of Gordon and Walker, until after the disaster; that he intended to deal, and did deal with Mien and Grant; that to him Mr. Mien did not represent himself as an agent — spoke of no agency — gave no name of principal — and finally, that he did give the goods on account of Mien and Grant.’ If these impressions were erroneous, or if he was deceived,nothing was done to undeceive him, or correct the error. Now, it is very true, as contended for by the counsel for the defendants, that Mr. Bonnett draws his inferences at his own peril; and it is his own look out and his care, whether or not, the conduct and language of Mr. Jifera justified him in his impressions, and reasonably induced him to believe and say, that the goods were given on account of Mien and Grant. , What was the plain import and meaning of the request by Mien, the answer of Bonnett, and the conversation of the parties? Were the final decision of this question left to us, we would say, that such was the language, and such was the manner in which Mien represented himself to Bonnett; and such was the personal ignorance of Bonnett, as to agency and ownership of the boat, that out of this transaction, a personal responsibility does arise. If Mien and Grant had gone round the town and said, we want freight, and will give Gordon and Walker’s, of Nashville, receipt, would they have succeeded ? Would they have been likely to have got freight upon their responsibility? The third and last question then is, on whom does this personal responsibility fall? The defendants answer, ‘certainly not upon ns jointly; not upon the firm of Mien and Grant. Because, if Mien did incur personal responsibility in this case, he had no right to bind his partner, Mr. Grant.’ Now, this seems to us to be the most dif-, ficult and serious point of the case; indeed, to my mind, the only difficult question. By the course of the arguments, too, we would suppose it was considered by the counsel, as the most material and important position. Its decision will depend, principally, upon the point of light in which the facts may strike you; upon the inference whieh you may draw from all the circumstances in evidence, as to the power of the one party to bind the other in a transaction like the present. We will give you the law bearing upon this point of the case; the law as to the express or implied power of the partner to bind the firm.
    “ It is often difficult (particularly in this country, where the various business and occupations of men are in many cases not very well defined,) to get at, and discover the nature, limits, and extent or business of a firm. Those who deal with a firm, have often times to run the risk, in cases of dispute, of being able to prove the members of it, or the nature and extent of their association. I do not mention this because I believe any difficulty has been thrown in the way here by the defendants; but for the purpose of showing the reason of the course of evidenc upon the trial of the cause, as well as the reason for the rule of law I shall lay down to you.
    “Now, where in the agreement of the firm, or their articles of partnership, an authority is given to any one of the partners, to bind the firm, then it may be said, there is an express power given to one partner to bind his colleague. He becomes, unequivocally, the agent of all, and in such ease, no difficulty could easily occur. But in other cases, where the precise terms of the association are not known, where the limits and nature of their business, and the power of each partner is not definitely ascertained, a court and jury are obliged.to resort to inference and implicataion, arising from the declarations, acts, conduct, and manner of doing business by the firm, in order to ascertain the power of one partner to bind the firrq*
    “Partnerships may be of two kinds: general and special.”
    [Here his honour explained the nature of a general and special partnership.]
    “ In both these kinds of partnerships, there is an implied power, in the absence’ of an express one, in one partner to bind the others in the business which they pursue. One partner is the agent of the firm, within the scope of business which they follow. But he cannot bind the firm to engagements unconnected with, or foreign to the affairs in which they are engaged.
    “Thus I would say, that one commission merchant, even in Pittsburg, where the business is not strictly confined to that pursuit, would not have the power, without the consent of bis colleagues, to convert the firm into freighters or common carriers. And an engagement without that consent, in a transaction thus foreign to then- association, would be without authority; good to be- sure against the particular partner who made it, but void against the others.
    “Let me lay down to you another principle of laiv, materially connected with the present inquiry. It is this.
    “A partnership, as it proceeds, or grows older, or as capital increases, business multiplies, or commerce changes, may be greatly extended, as to its objects and the manner of conducting it. A limited partnership may become general; and a general one more general or more extensive. This happens by the acts and conduct of the parties, by their branching out and making their business more diffusive. This extension of the business of a firm, may be discovered by the assent, the acquiescence, as well as the positive acts of the partners.
    “ Upon this branch of the case, my last legal position is this. Although the particular undertaking in dispute may be unconnected with the usual line of the business of the firm, and may have been entered into by but one partner, yet if the others consented, or knowingly acquiesced, the whole firm would be answerable. In such case the one may bind the’ other.
    
      “Now, to ascertain by the application of these legal principles to the facts in evidence, whether the undertaking made Mr. Bonnett, should fall upon the firm of Mien and Grant, let us see what the circumstances are, showing the extent and nature of the business of the firm, and whether they indicate an assent or sanction, on the part of Grant ?”
    
    [Here the President stated and commented upon the facts connected with this part of the case.]
    “ Now, if you believe these facts, that this firm, had so extended its business, had rendered it so diffuse and multifarious, that such toas the manner of conducting its affairs, that this transaction fairly and reasonably fell within the compass of their business, the undertaking would not be fraudulent and void as relates to Grant, but would be binding on the firm. If you think otherwise", the responsibility/would not fall on the partnership.
    “When one partner contracts in the name of the firm in a transaction connected with the objects of the partnership, he is said to act as the agent of the other partners. From the evidence you have heard, do you feel justified in believing, that such an agency existed in the transaction? Do you believe, that from an extension of their business, that such were the many and multiplied objects of their partnership connexion, that Mien had the right and agency to bind his partner, whether he was dealing as the agent of Gordon and Walker, or whether he was dealing for the firm ? But more particularly, that he had the power to bind the firm, personally, in an agency business?
    “ Again. In pursuing this inquiry, and whilst upon the facts connected with it: Although you may think the general nature and objects of the partnership would not justify the exercise of this right by Mr. Mien, to bind the firm, (and if you believe it was merely an agency business, you ought to ask very strong evidence to induce you to believe there was a power in one partner to bind the firm personally,) and if it was foreign to the nature of their partnership business, did Grant acquiesce or assent to the course that was pursued ?’i
    
    ' With the record was returned a certificate, in these words, signed by the presiding judge. ■
    “ What follows I have no recollection of delivering, nor it it on my notes. But Mr. Baldwin having it upon his notes, I am willing to adopt it upon his word. I think it all correct, and it is very probable I may have used the language.”
    “ Wh. Wilkins.”
    The following is what his honour here refers to.
    , “After the close of the charge, in reply to some Observations from Mr. Baldwin, the President said, that he could not see how any lawyer could doubt as to the responsibility arising out of the conversation with Bonnett. All which then occurred, would induce any one to believe the freight was intended for Allen and Grant. Latapie appears to us to have had nothing to do with the contract for transportation, and therefore, I do not see how his knowledge of the ownership of the boat could have any effect on what Bonnett had done. The responsibility arose out of the conversation with Bonnett; and Bend’s telling Latapie, that Gordon and Walker owned the boat, could not change the na~ lure of the engagement.”
    
    
      Baldwin and Boss, for the plaintiffs in error, contended,
    1. That in permitting the question relative to the reputation of a general partnership between Messrs. Allen and Grant, to be put to John Darragh, the Court of Common Pleas had erred. General reputation may be received as corroborating evidence of a partnership, but, not to prove its extent, which can only be established fay acts. If the question was inadmissible, the manner in which it was answered cannot cure the defect. The answer was not a positive negative, but merely a declaration by the witness, that he could not answer in the affirmative, and the court, by permitting the question to be put, having laid down the law to the jury, that the extent of the partnership might be proved by general reputation, the want of the witness might have been supplied by the private information of the jury themselves; and thus the plaintiffs in error sustained a serious injury. If improper evidence be admitted, the error is not cured by subsequent evidence sufficient to establish the same fact. Maxwell v. Webb, 16 Johns. 89. Wherever an erroneous opinion of the court is calculated to influence the jury, it may be assigned as error. Deihl v. M‘Cormick, 8 Serg. Bawle, 345. Snyder v. Snyder, 6 Binn. 499. Bidgly \. Spencer, 2 Binn. 70. Shoffer v. Kritzer, 6 Binn. 433.
    
      2. The subscription of Messrs. Allen and Grant, for stock in the Pittsburg Navigation Company, ought not to have been admitted in evidence, because it was a fact not conducing to prove, that one of the defendants had a right to bind the other as a common carrier or a freighter of goods. It was altogether irrelevant, and might have been demurred to. Lickbarrow v. Mason, 1 H. Bl. 357,8.
    3. The testimony of Bonnet, to prove the assumption by one partner for both, was improperly admitted, because the right of one to bind the other had not been previously proved. The evidence of Logan did not prove it, and there was nothing else. A single instance is not sufficient to establish a general authority. 4 Johns. 377, 379, 3S0. Joyce v. Sims, 2 Dali. 223.,
    4. In saying that an agent is personally liable, unless his agency is declared, the court laid down the law too broadly for the circumstances of this case. It should have been left to the jury to decide from the circumstances, whether the defendants had jiot contracted .merely as agents. It is not necessary for the agent to disclose his character, where it is known to the person with whom he deals. The defendants were notoriously agents, which is sufficient to bring the knowledge of their character to the plaintiff1. In Miles v. O’Hara, 1 Serg. Rawle, 32, it was held, that evidence might be given of the general understanding, that the drawer of a bill was merely an agent, and not to be held responsible. In the case of a public agent," the intent to bind him personally, must distinctly appear, or he is not personally answerable. 12 Johns. 387, 444. 1 Crunch, 365. And there is no difference between government agents and other agents. 15 Johns. 1. Besides, the general notoriety of the defendants character as agents, there was much evidence in the case, from which it might have been inferred. The account of an agent need not on its face purport to be such. It may be inferred from the nature of the transaction. 5 Wheat. 337. The vessel was known to every one to be the property of Gordon and Walker, and the fact of the agency was well known to Latapie, one of the plaintiff’s agents, to whom the goods were consigned. The plaintiff, therefore, could not have been ignorant of the fact. Notwithstanding all this, however, the court laid it down as law, that unless the agency was expressly disclosed, the defendants were liable personally. They cited in the course of argument on this point, 7 T. R. 359. 2 Esp., N. P. 568. 4 Serg. 8? Rawle, 331. 12 Mass. Rep. 22. 12 Johns. 514, 520.
    5. The court erred in saying, that a personal liability arose from the conversation between Bonnett and Jillen. The observations on the preceding point, are applicable to this, and need not be repeated.
    6. In leaving it to the jury to decide from the evidence, whether Jillen had a right to bind his partner in this transaction, the court erred. This was matter of law, which the court ought to have decided. 4 Serg. 8,' Rawle, 279. 8 Serg. 8,'Rawle, 388. A Johns. 388.
    7. The jury were permitted to presume the acquiescence of Grant, when there was no evidence to justify such a presumption. There was some evidence of previous consent, but not the slightest of acquiescence, which implies subsequent assent, or approbation.
    
    8. Notice to Latapie, clearly affected the plaintiff, and the court erred in saying, that it did not. He was the plaintiff’s agent in this very transaction, the consignee of the goods, in whom the legal title was vested. Griffith v. Ingledew, 6 Serg. fy Rawle, 429. Whatever was done by him in the business in which he was employed, was the act of his principal, and consequently, whatever was known to the agent, must be considered as known to him for whom he was acting.
    
      Biddle, for the defendant in error, insisted,
    1. That the question put to Darrah was perfectly proper, and that if it was not, it could not be assigned for error, because, the answer was in the negative, and could not injure the defendants. It had been previously proved, he observed, that the defendants had gone beyond the line of commission merchants, in buying and selling on their own account, and also, that in Pittsburg, commission merchant was an- undefined term, not confined strictly to the commission business. ' Under these circumstances, the plaintiff was intitled to prove the extent of the partnership, by evidence of the general reputation. Whitney v. Sterling, 14 Johns. 216. Livingston v. Roseveldt, 4 Johns. 251, 258, 259, 270. Admitting, however, the question to have been improper, the defendants were uninjured by it, because the answer proved nothing. A multitude of cases establish the position, that that only can be assigned for error, which inflicts an injury on the party complaining. Toy’s Case, 5 Co. 39. Williams v. Guyer, 2 Saund. 46. 7 Johns. 182. 13 Johns. 517. Preston v. Harvey, 2 Henry 8,' Munf. 67. Hayl v. Hudson, 12 Johns. 207, 209. Brown v. Downing, .4 Serg. 8,- Rawle, 498. Hubly v. Vanhorn, 7 Serg. 8¡' Rawle, 185. Wolvcrton v. Commonwealth, Id. 275. Bank of Pennsylvania v. Ligget, Id. 218. 2 Hen. 8r Munf. 557.
    2. The subscription for fifty shares in the Pittsburg Navigation Company, was in the handwriting of Grant in the name of the firm, and proved that,the house did other commission business. It was one step at least towards the establishment of a general partnership, and was, therefore, good evidence. 4 Johns. 264, 276.
    3. The admission of Bonnet’s testimony. (The court told Mr. Biddle, that he need not speak to this point.)
    4. That the court stated the law correctly with respéct to the personal liability of an agent who does not disclose his principle, there is abundant authority to show. Morie v. Hefferman, 13 Johns. 77. May hew v. Prince, 11 Mass. Rep. 54. 2 Livermore, 247. Meyer v. Barker, 6 Binn. 235. Paley, 289, 290, 293, 296, 312. All that the judge said was right, and he is not bound to lay down the law in every possible contingency. Lilly v. Paschal, 2 Serg. <§• Rawle, 397. Caroihers v. Dunning, 3 Serg. 8? Rawle, 385.
    5. If the court said, “ that a personal responsibility arose from the conversation between Bonnet and Mien,” they left the decision of that fact to the jury, in various parts of the charge, and therefore, what was said was not error.
    6. Whether Mien had power to bind his partner in the transaction in question, was a fact, and consequently, matter for the determination of the jury, to whom it was properly left. It depended upon a variety of facts, tending tc? show the nature of the business the firm had been concerned in, and that the commission business embraced a transaction of this nature. The court would have done wrong had they assumed the decision of such a question. Brown v.- Campbell, 1 Serg. 8$ Rawle, 176. Cassel v. Cook, 8 Serg. 4' Rctwle, 268.
    7. There was abundant evidence of the consent of Grant to the. acts of Allen, in relation to the shipment of the goods, and to say there was no acquiescence, is merely a verbal criticism. The judge took a view of the whole of the evidence, and left the fact of consent, sanction, acquiescence to" the jury.
    8. What is imputed to the court below, with respect to Latapie’s knowledge of the nature of the contract, was no part of the charge. The judge does not say that it was, but takes it on the word of counsel. It, therefore, is not the subject of review by this court. Admitting it to have been part of the charge it was right. If Bonnet made the contract, as it appears he did, it could not be affected by notice to Latapie. The goods belonged to Rostain. They were sent to Bonnet in order to be forwarded to Nashville, where they were to be delivered to Latapie. Bonnet made the contract of freight, with which Latapie had nothing to do. Even if Latapie had been the owner of the goods, it'would not have affected the contract made by his agent, because although the defendants did not own the vessel, they might contract for the freight.
   The opinion of the court was delivered by

Tirghman, C J.

This is an a'ction brought by Rostain, the plaintiff below, against Allen and Grant, the plaintiffs in error, to recover damages for the loss of the plaintiff^ goods, shipped at Pittsburg, to be carried in a boat freighted by the defendants, to Nashville, in the state of Tennessee. The boat sunk in the Monongahela river, off the city of Pittsburg, soon after the goods were laden, in consequence of which, they were greatly damaged. The declaration contains two counts; one in which the defendants are charged as common carriers; the other, on their special assumption. The plaintiff obtained a verdict; but the counsel for the defendants took several exceptions, on points of evidence, and to the charge of the court.

The first exception was to the admission of the evidence, c( that Grant had subscribed in the name of Allen and Grant, for fifty shares in the Pittsburg Navigation and Insurance Company.” In order to recover, it was necessary for the plaintiff to prove, in the first place, that Allen and Grant were partners. The defendants confessed a partnership in the commission business, but denied that it extended further. The plaintiff contended, that although the partnership might, in its origin, have been limited to the commission business, yet it was afterwards extended to every kind of concern in which merchants are engaged, including the carriage of goods and merchandize, from Pittsburg, down the river Ohio. Now, this might be shown, by proving that they had transacted various kinds of business out of the line of commission merchants. A single transaction of this kind, might not have been sufficient to satisfy the jury; nevertheless, the plaintiff had a right to prove one thing at a time, and thus by adding fact to fact, a mass of testimony might have been produced, sufficient to warrant an inference of general partnership. The evidence offered, was an advance of one step; because it proved one transaction by the defendants, as partners, beyond the commission line. A subscription to a Navigation and Insurance Company, is certainly not commission business. The evidence, therefore, was properly admitted.

2. The plaintiff having proved, that the defendants did business in partnership as commission merchants, and also bought and sold goods on their own account, (a general practice with the commission merchants of Pittsburg;) that they had an account opened in bank, in the name of the firm, and signed and indorsed notes in the same name, proposed to ask the following question of one of his witnesses: “Was it the general reputation,-that the defendants dealt as partners in any business or speculation, in which capital might be advantageously employed ? To this question the defendants objected, but the court permitted it to be put to the witness, who answered, “ that he could not answer the question in the affirmative.” The defendants counsel tendered an exception, which was allowed by the court. General reputation of a partnership, or of the extent of a partnership, is not evidence, except in corroboration of previous testimony. Whether a sufficient foundation had been-laid by the previous evidence in this case, it is unnecessary to decide, because, even if there had been error in admitting the question, it appears by the record, that the defendants suffered no injury from it, the witness having given no evidence of general reputation. I have never known a case circumstanced exactly like the present. Yet I think, principles have been established, upon which the'point before us may be safely rested. It is a general and well known principle, that a person shall not assign that for error, from which he has suffered no injury. The reason is uncontrovertible. The administration of justice is not promoted, by reversing a judgment for-an error by which no injury has been sustained. But, to bring this general rule to the point. If the party by whom evidence is offered, having obtained the court’s decision in his favour, think proper to waive the evidence, the judgment shall not be reversed, though the decision was erroneous. Now, what difference does it make to the adverse party, whether the evidence is waived, or no evidence given, because the witness knew nothing? In the Bank of Pennsylvania v. Leggit, 7 Serg. 8? JRawle, 2IS, a witness produced by the defendant, was rejected by the court. The plaintiff then waived his objection, and consented that the witness should be examined; but the defendant thinking that he had gained an advantage by the error of the court, refused to examine the witness, and tendered a bill of exceptions. The case having been brought before this court by writ of error, it was decided, that as it was the defendants own choice not to examine his witness, the judgment should not be reversed. The cases cited by the plaintiff’s counsel, support his position, that there shall be no reversal of a judgment, where no injury has been sustained. 5 Co. 39. 2 Saund. 46. 7 Johns. 182. 13 Johns. 517. 2 Hen. & Munf. 67. 4 Serg. & Rawle, 498. 7 Serg. & Rawle, 185. But the defendant’s counsel contend, that there probably was an injury sustained in this instance, because, the jury having heard the court’s opinion, that general reputation was evidence, might have been influenced by their own knowledge, of a general reputation in Pittsburg, that the defendants were engaged in a general part- ' nership. But we must not suppose that the jury acted illegally. They were sworn to determine according to the evidence; that is, the evidence as given upon oath, in open court. Although it was once held, that a juror might determine upon facts within his own knowledge, not proved by his oath, yet that opinion has been long reprobated, in consequence of the confusion and injustice which would result from it. The parties have a right to hear the evidence, that they may have an opportunity of cross examining the witness, and contradicting him, if necessary, by other evidence. It has also been contended, on the part of the defendants, that the plaintiff had no right to have the answer of the witness inserted in the record, and consequently, this court should pay no regard to it. It is true, that our bills of exceptions, which are often drawn very inaccurately, do not usually insert the eviden.ce which has been excepted to. But on examining precedents drawn with great care, it will be found, that the most perfect form is, first to set forth the evidence which is offered, then the court’s opinion in favour of its admission; and afterwards to aver, that the evidence was given. 1 Went. 172. 6 Went. 131. To say, that the plaintiff had no right to place the answer of the witness on the record, is begging the question. I think he had the right, in order that it might appear, that the defendants had suffered no injury. And on full consideration, I am perfectly satisfied, that considering the whole record, it appears, that no evidence of general reputation was given, and therefore, the judgment should not be reversed, on this exception, whether the opinion of the court was right or wrong. If the slightest evidence had been given, the judgment must have been reversed; because, it is not for a court of error to weigh the evidence, or determine what influence it had on the verdict.

I come now to consider the exceptions to the charge of the court.

1. The first error is, that the jury were instructed, that a mart who contracts with another in his own name, is personally liable, though he be an agent, unless he discloses that fact at the time of the contract.” The objection is, that .the law was laid down too generally. It must be recollected, that the judge first laid down the general law of principal and agent, and then applied it to the evidence. And in order to do justice to the charge, we must take it altogether. It cannot be denied, that the general principle is what the court declared it to be. The agent is personally liable, unless he gives notice that he contracts as an agent, and names his principal. That the law must be so, is self evident; because, the other party may have confidence in the agent, but no confidence in the principal; he ought, therefore, to be informed of the principal, that he may elect whether he will trust him or not. There may be cases, where the general law admits of distinction, but it does not appear that it was necessary to notice them in this charge. It cannot be expected that a judge should write a complete treatise on the law of agency. It is enough, if he instructs the jury in such a manner as not to mislead them. Bonnett, the plaintiff’s agent, swore that he contracted with Allen, as he understood, for the house of Grant and Allen, personally; that he knew them not as agents, but trusted to them, alone. If the defendants’ counsel supposed, that their case might be distinguished by any particular circumstances, they had a right to propose those circumstances hypothetically, and ask the court’s opinion of the law. And on one point they did ask it, and received an answer, which will be considered hereafter. But in the general instruction on the law of principal and agent, there certainly was no error, and therefore, the first exception has not been supported.

2. The second error'is, in charging, “ that a personal liability arose from the conversation between Bonnett and Allen." This is pretty much the same as the first. When Bonnett made the contract with Allen, there was no mention of an agency. The liability, therefore, was personal. But whether the liability was confined to Allen, or included his partner, Grant, was another question which does not fall within the scope of their objection.

3. “ The court left it to the jury, to say, from all the evidence, whether Allen had a right to bind his partner.” I confess, I do not see how the court could have done otherwise. For, whether Allen had that right, depended on facts, which the jury alone could determine. They were instructed as to the nature of partnership, and told, that a bare partnership in the commission business, would not authorize one partner to bind the other in a contract of affreightment. But whether the original partnership between the defendants as commission merchants, had been extended so far as to embrace the contract in question, or supposing it had not, whether Grant had not consented to this particular contract, were facts which the court could not decide. The evidence on both sides was summed up by the court, and the case fairly submitted to the jury.

4. “The court left it to the jury to presume the acquiescence of Grant, when there was no evidence to justify such inference.” This exception is founded on a distinction, rather hypercritical; a distinction between consent and acquiescence. Acquiescence, it is said, must be subsequent to the contract, and there was no evidence of any act, or declaration of Grant subsequent to the contract, in this instance; although there was evidence, and strong evidence oí precedent consent. To judge fairly of the charge, we must attend to the judge’s expressions. “Although the particular undertaking in dispute may be unconnected with the usual line of the business of the firm, and may have been entered into by but one partner, yet if the other consented, or knowingly acquiesced, the whole firm would be answerable. And again, “If you believe it was merely an agency business, you ought to ask very strong evidence, to induce you to believe there was a power in one partner to bind the firm personally; and, if it was foreign to the nature of their partnership business, did Grant acquiesce in, or assent to the course that was pursued?” Surely the defendants have no right to complain of this part of the charge, considering the evidence which had been given. It had been proved by David Logan, that some time previous to the contract with the defendants, Grant called on him, and. said, he should have a boat to load for Nashville, and asked whether the witness had any goods for freight; Lagan then asked him, who would sign the receipt, to which Grant answered, 11 we wiV.” This looked very much like an assurance that both partners should be personally bound, and if the ■jury should so construe it, they would be authorized in inferring a consent to a contract to bind the-firm, to be made by Mien with the plaintiff. Now, whether you call it consent or acquiescence, is not material. Surely a judgment should not be reversed, on a verbal criticism of that kind.

5. The last exception, is to the opinion of the court, “ that although Latapie, an agent of the plaintiff, to whom the goods were to be consigned on their arrival at Nashville, knew that the boat which carried them, belonged to the house of Gordon and Walker, at Nashville, it could have no effect on the contract made by Bonnett with the defendants.” It is to be observed, that whatever the contract between Boiinett and the defendants was, Latapie never interfered in it. There was no evidence whatever, of his having taken any part in it. Then, how could that contract be affected by Latapie’s knowledge of the persons to whom the boat belonged ? Might not the defendants bind themselves personally, although they acted as agents for Gordon and- Walker? And if they did so bind themselves, was the contract tobo dissolved, by Latapie’s knowledge of the owners of the boat ? Bonnett and Latapie were both agents of the plaintiff; but for different purposes. Bon-Mfiii received the goods at Pittsburg, and contracted for their carriage to Nashville Latapie was the consignee, to receive, and sell them at Nashville. Latapie’s knowledge, therefore, of the owners of the boat, would have been perfectly consistent with the contract of the defendants; whereby they were personally bound for the carriage. Although I have given my opinion on this last exception, yet I must remark, that I do not consider it as being properly on the record. The judge certifies, “ that he has no recollection of having given such matter in charge, but as it is in Mr. Baldwin’s notes, he is willing to adopt it, on his word; that he thinks it all correct, and very probably he may have used the language.” If the point of law had been doubtful, this court would have been bound to. send the record back, to give the Court of Common Pleas an opportunity of certifying positively whether the matter excepted to, was given in charge or not. On the whole, I perceive no error, and am of opinion that the judgment should be affirmed. '

Judgment affirmed.  