BLAND, P. J.
Suit was commenced before a justice of the peace on the following promissory note:
“Dolls. $97.00. May 12, 1891.
One day after date we promise to pay to the order of Oarter-Montgomerie & Oo. Ninety-seven dollars, at ITartville, Mo., for value received, negotiable and payable without defalcation or discount, and with interest from date at the rate of ten per cent per annum, and if the interest be not paid annually, to become as principal and bear the same rate of interest.
Steele & Brown.”
The note was credited with a payment of $31.37 in lumber. The cause was taken by appeal to the circuit court, where it was tried by the court sitting as a jury. The testimony was that Steele and Brown were partners in the milling business at Hartville, Missouri, and that they bought wheat, corn and saw logs, manufactured meal and flour, and also lumber for sale; that Brown was the general manager of the business of the partnership; that he hired and discharged hands, bought grain, logs, etc., and had the general charge of the business of the firm; that plaintiffs were engaged in the general merchandise business in the same town (Hartville); *214that Brown for the firm bought corn and wheat from, the plaintiffs, to be manufactured into meal and flour at the mill, and that he also gave orders on plaintiffs in payment of wages due mill hands, which were accepted and paid by plaintiffs, and that plaintiffs bought lumber and other products of the mill from defendants. On a settlement of these mutual accounts made between plaintiffs and Brown, acting for the mill firm, it was ascertained that there was a balance of $97 due plaintiffs; for this balance the note in suit was executed by Brown acting for and in the name of the firm of Steele & Brown. Steele made and filed his affidavit denying the execution of the note by himself and the authority of Brown to sign the firm name to it. The court at the conclusion of the evidence declared the law to be", in effect, that if Steele did not authorize Brown to sign the note in the name of the firm, and did not thereafter ratify it, he was not bound by it, found the issues for defendant, and entered judgment accordingly; from'this judgment the plaintiffs appealed.
The correctness of the declaration of law given by the court depends upon the character of the partnership. If it was a nontrading concern, the instruction may according to some of the authorities be sustained. Deardorf v. Thacher, 78 Mo. 128. If on the other hand it was a commercial partnership, the instruction according to all the authorities was erroneous. That the partnership was a commercial one, admits of no doubt, in view of all the evidence. It bought logs, wheat and corn and manufactured them into lumber, flour and meal, and sold these products. It was engaged in the business of buying and selling personal property and selling it in a changed condition. Commerce is carried on by buying and selling. The fact that the articles are changed by being manufactured into something else, does not alter the fact— that does not change the commercial character of the transactions. Kimbro v. Bullett, 63 U. S. (22 How.) *215256; Coply v. Lawhead, 11 La. Ann. 615; Smith v. Collins, 115 Mass. 388; Winship v. Bank, 5 Pet. 256; Beminger v. Hess, 4 Ohio St. —. Where the evidence is conflicting as to the objects of a partnership or of its recognized course of dealing, it may be a question for the jury to say, under proper instructions, whether it is a trading or nontrading concern. But where the evidence is all one way, that it is a trading partnership formed for the purpose of buying and selling, there is no question as to its character to be submitted to a jury, or vice versa, where all the evidence is that it is a nontrading partnership, it becomes the duty of the court to declare as a matter of law, that it is or is not a commercial partnership. The court should have declared the law in this case, that the partnership was a commercial one, as all the evidence was that it was engaged in buying and selling. Eor failure to so declare the law, the judgment is reversed; and since there is no evidence which tends in the remotest degree to contradict the evidence that it was a trading concern, or that the note was given for a partnership debt, the cause will be remanded, with directions to the trial court to enter judgment for the balance due on the note.
All concur.