Thomas v. Green

Stewart, J., delivered the opinion of the Court. The appellants having abandoned their third, fifth and sixth prayers, our attention is directed to the rejection of their first, second and fourth prayers, and the instructions of the Court below, to the jury, in the first and second exceptions. The first and second prayers were objectionable and properly refused, because they proposed instructions to the jury in relation to certain isolated and detached matters, not material, according to the current of all the testimony, to the establishment of the claim of the appellee, nor to the legitimate defence of the appellants. They could only embarrass and mislead the jury in considering the substantial questions ⁶ between the litigants.

From a comprehensive review of all the evidence, it was palpable that the controlling enquiry of the jury was not whether the appellants were really co-partners in trade; but had they been so held out to the appellee under such circumstances as to make them liable to his demands. The first part of the fourth prayer presented merely an abstract proposition, which the Court on that account could not grant. The second part was not pertinent, because, if there were, in point of fact, no co-partnership between the appellants, the appellee would not be concluded thereby, as he was seeking to recover from the* appellant, Joseph A. Thomas, from the manner in which he held himself out to him as a co-partner; and knowing nothing to the contrary, had trusted him as such. If the jury believed from all the ■ evidence that the conduct of Joseph A. Thomas was reasonably calculated to induce such an impression on the mind of the appellee, who had trusted the firm under that belief, such deportment would make him liable as a partner to the appellee.

This conclusion might be deduced from presumption, from a consideration of all the circumstances, as well as by express acknowledgment of the fact. However, the ruling of the Court, very clearly expounded the law applicable to the facts in the case. If the Court had submitted a proposition of law to the jury, or had blended law and fact as insisted upon by the appellants’ counsel, the instruction