— The action was brought to recover an amount said to be due to the plaintiff for goods sold and delivered to the late firm of Norton & Golden. The action is in form against Patrick Norton, as surviving partner of that firm, but upon the trial it appeared that he was not a member of the firm, although by reason of his acts liable to third persons as if he had been a member thereof. It was upon this theory that the plaintiff was allowed to testify to conversations with Goldon in which the latter ordered the goods for
It may be also said that there is evidence enough in the case outside of the conversations with Golden to sustain the verdict, such as proof that the goods were delivered and that Norton promised to pay the bill, and it may be argued that the admission of the evidence complained of was at most a harmless error. Be this as it may, the only certain mode of curing the error complained of is by ordering a new trial.
The motion will therefore be granted, no costs.