53 Iowa 81 | Iowa | 1880
To prove that the partnership between Rains and Summers continued after August, 1876, the plaintiffs introduced witnesses to prove the declarations of Rams, made without the knowledge of Subainers. To this evidence Summers objected. But the objection was overruled and the evidence admitted. We think that the evidence should have been excluded. If one person can be held as the partner of another simply upon' the declarations of the other, who may be interested to obtain credit upon the strength of the declarations, there would be no safety for any one. The court, in its instructions, indeed held that a partnership could not be thus proven, and ruled that the declarations were admissible only for the purpose of impeachirig Rains as a witness. But no proper foundation
This being so it might, perhaps, be thought that the admission of testimony in regard to the declarations was without prejudice; but we think otherwise. The testimony was well calculated to confuse and mislead the jury.
Eor the purpose of’ proving the continuance of the partnership after August, 1876, evidence was admitted against the appellant’s objection to the effect that they were reputed to be partners. In this we think that the court erred. The fact of a partnership cannot be proven by reputation.
The court instructed the jury, in substance, that notwithstanding the partnership might have been dissolved in August, 1876, yet if Summers concealed the fact for ’ the purpose of giving Eains credit, and it was understood in the community that the partnership still continued, Summers might be liable.
In giving this instruction we think that the court erred, because we think that it was inapplicable. No question arises as to whether Summers held himself out as a partner and thereby became liable without being one, because, as the evidence shows, the credit was not given upon the supposition that he was a partner. A person can be held as partner where he is not a partner only where his conduct has been such as to mislead creditors, and estop him from showing the truth.
Beversed.