124 Mass. 588 | Mass. | 1878
It became important at the trial to determine whether Andrews was a copartner with Hill and Bartlett, when the debt was contracted, and when the composition deed was signed and delivered by the plaintiffs. If the three were really partners, and the plaintiffs were induced to execute the composition deed with no knowledge or reasonable cause of knowledge that Andrews was one of the firm, the composition would not be binding upon the plaintiffs. Although the bill of exceptions does not purport to give the entire testimony of Hill, we must assume that it gives all of it that was relied upon to support the instruction to the jury, that “ if they believed Hill’s testimony to be true, it would make Andrews a partner.” That testimony, taken together as reported in the bill of exceptions, is consistent with the theory that Andrews was a creditor of the firm, rather than a member of it. It may have been that although an executory agreement was made which if carried out would have made him a partner, yet the final result was that he furnished Hill and Bartlett with goods, taking their promissory note for them; and no evidence is reported to the effect that he shared, or was to share, in the profits, or was held out as a partner. The verdict may have been given entirely on this ground.
As this difficulty appears to be decisive, we have not thought it necessary to consider the other questions presented.
Exceptions sustained.