Opinion
Department Two
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
COUNSEL:
The instructions excepted to were erroneous. There can be no partner outside of the partnership agreement. Unless there is proof of a partnership agreement, there is no proof of partnership. (Civ. Code, sec. 2395; Quackenbush v. Sawyer , 54 Cal. 440; Noblit v. Bonaffon , 81 Pa. St. 15; Levy v. McDowell, 45 Tex. 220; Wheeler v. Farmer , 38 Cal. 203.) Defendant's motion for a nonsuit should have been granted, there being no proof of her partnership. (Gilman v. Bootz , 63 Cal. 120; Clark v. Ritter , 59 Cal. 669; Code Civ. Proc., sec. 581, subd. 5; Masten v. Griffing , 33 Cal. 111; Johnson v. Moss , 45 Cal. 518.) Where there is a partnership agreement, that is the only evidence of the real status of the parties to each other. (1 Collier on Partnership, 7, note 9; Coulter v. Thomas , 25 Vt. 73; Robins v. Laswell , 27 Ill. 365; Stevens v. Faucett , 24 Ill. 483; Phillips v. Phillips , 49 Ill. 437; Neihoff v. Dudley , 40 Ill. 406; Lintner v. Milliken , 47 Ill. 178; Clark v. Reed, 11 Pick. 446; Hazzard v. Hazzard, 1 Story, 371; Salter v. Ham , 31 N.Y. 321.)
George E. Lawrence, for Appellant.
E. W. McGraw, for Respondent.
The charge of the court was entirely in accordance with the law. The following cases are authority for both the verdict and the instructions complained of: Reed v. Kraemer , 111 Pa. St. 485; Allen v. Dunn , 15 Me. 292; Smith v. Moynahan , 44 Cal. 53.
JUDGES: Sharpstein, J. McFarland, J., and Thornton, J., concurred.
OPINION
SHARPSTEIN, Judge
The plaintiff in his complaint alleges that "the Independent Stove and Pipe Works is a copartnership, doing business in the city and county of San Francisco, and that the defendants, Jacob Broeder, Francis Bornheimer, and Catherine Bornheimer, were members of and comprised said firm." And that, on April 15, 1885, said defendants became indebted to plaintiff in the sum of $ 307, on a balance of account of goods, wares, and merchandise theretofore sold and delivered by plaintiff to said copartnership at its special instance and request; that defendants have not paid said sum or any part thereof, but the whole remains due and owing by defendants to plaintiff.
Defendants Francis Bornheimer and Jacob Broeder answer jointly, denying that they and defendant Catherine Bornheimer were members of or composed said alleged copartnership, and denied that at any time said defendants were indebted to plaintiff in said sum of $ 307, or any other sum.
Defendant Catherine Bornheimer answered separately, denying that she was ever a member of said copartnership, or that the defendants or she was indebted to the plaintiff in any sum whatever. The action was tried by a jury, which returned a verdict against all the defendants in favor of the plaintiff, assessing his damages at the sum of $ 307, for which sum a judgment was entered in his favor against all the defendants. Defendant Catherine Bornheimer moved for a new trial, which was denied, and from that order and the judgment against her she appeals.
The grounds upon which appellant mainly relies for a reversal of the order denying her motion for a new trial are, that the evidence shows she was not a partner with her co-defendants, and that she never held herself out to the plaintiff as a partner of said co-defendants.
There is evidence that she did and evidence that she did not so hold herself out to the plaintiff as a partner with her co-defendants for the purpose of obtaining credit with the plaintiff for the [24 P. 837] goods sold to said partnership. The plaintiff testifies that she did; she testified that she did not. It was for the jury to determine whom they would believe, and the court below having denied a new trial, we cannot disturb the order on the ground of insufficiency of the evidence to justify the verdict.
The instructions of the court to the jury, and excepted to by appellant, are not erroneous.
Judgment and order affirmed.