Chаrles L. Cole, the plaintiff in error, and Iiiram D. Cole were sued jointly by defendants in error to recover the balance remaining unpaid of an account for certain goods furnished to one Bobbins Jones. The two Coles were in partnership in the cheese business up to 18 when the testimony tended to shоw they dissolved and Hiram D. Cole continued the business. We discover no evidenсe which could lawfully be received as against Charles L. Cole to make out any subsequent partnership, in favor of persons who had not dealt with the firm before. There is some
Boyd testifies that in 1877 his firm was buying cheese of H. D. Cole, and says “ he wanted we should sell Jones what goods he might want, and he would see that we were paid for them. He said he wanted about fifty dollars worth at "that time, and said he would pay for them; that Mr. Jones had been in business there, and was sоmewhat unfortunate, and he wanted to render him some assistance, and wanted us to send him some goods, — about $50 worth, — and said#he would pay for them.” This is the only evidence of any •express arrangement; and this was not made in the nаme of ■any but H. D. Cole, and was confined to fifty dollars. Whether it was an original or collateral promise we need mot now stop to inquire. But on this oсcasion Boyd testifies he sold Jones $70 worth of goods, of which he paid $20 in •cash and the balance was charged to H. D. Cole. The testimony as to subsequent dealings tends to show on the part ■of plaintiffs below a series of transactions in furnishing ■Jones goods, on which payments and credits were made from time to time, some by Jones, some by one or the other -of the Coles, and charges on the books to the Coles or one of them which it is claimed they recognized and acted on.
There were, when the testimony on both sides was in, ■several matters of fact which left before the jury, as claimеd by the parties, questions as to the person or persons to whom ■crеdit was given, and the conduct of the various parties in reference tо the accounts. It is not necessary to determine, now, whether from this cоnfused mass any joint liability of the two Coles could lawfully have been inferred, bеcause the course taken on the trial prevented the jury from properly dealing with any of the chief inquiries.
The jury had presented to them a sеries of specific questions involving the various facts which would determine the nature of the transactions as binding or not upon the defend
Sectiоn 6026 of the Compiled Laws, in conformity with well-settled principles, makes the special findings in all cases-control the general verdict. Their purpоse is to enable the-court to know what view the jury take of the material issues, and to correct their possibly wrong inferences from the factswhiсli they find to exist. The effect of the course taken here was to make the court and not the jury decide the issues.
The judgment for this error must be set aside and a new-trial granted with costs.