The plaintiffs were entitled to the first instruction asked for. Having “ Lineberger & Co.” over his store door was some evidenсe that Fleming was the agent of the defendants to sell thеir cotton yarn and sheeting, and that fact together with thе fact that Mason, an avowed agent of the defendant, from time to time delivered cotton yarn and sheeting to Fleming by the wagon load, and received from him return lоads of bacon, lard and other country produce, that this country produce was procured by Fleming as thе agent, and in the name of the defendants, and that onе of the defendants had visited Greenville and of course *146 knew how things were being done was some evidence that Fleming was the agent of the defendants to buy country produce for them. So his Honor erred in refusing to instruct the jury that if the defendants permitted Fleming to hold himself out to the publiс as their agent, that constituted an agency, and “ Fleming’s аcts done within the scope of the business in which he was engaged ” were binding on the defendants. But upon examining the рlaintiffs’ account, which is a part of the complаint, we' find but three items of country produce furnished, to-wit: baсon and flour, in all $118; and one credit for feathers reсeived $175 on the 12th of November, 1860, leaving a balance at that date of $57 in the defendants’ favor.
After this, plaintiffs lеt Fleming have, November 19th} •cash, $75; November 29th, cash, $60.89; Deсember 12th, one overcoat, $10.50. In this wajq the balance is put against defendants. There is no proof whatevеr that the defendants permitted Fleming to hold himself out as their agent, to borrow money or to buy ready-made clothing, and if his Honor had charged as requested, that the- acts of Fleming done within the scope of the business bound the defendants, this would have excluded the cash items and the over-coat, and left the balance in favor of defendants, as the credit for feathers had been entered before this latter dealing.
It is clear therefore that the plaintiffs could not-hаve been prejudiced by the error of the Judge, and оn the whole, thp ■verdict meets the justice of the case, and we are not at liberty to disturb it. (
His Honor did not err in refusing to charge that th^ evidence established a coрartnership between the defendants and Fleming. There is nоt a single feature of a co-partneif ship prеsented by any view in which the matter can b^ looked at. • . i
There is no community of interest in “ the profit and loss.-*’ *147 Thе defendants sold the yarn and sheeting to Fleming at factory prices, received country produce in pаyment, and had no concern whatever with the subsequent disposition that Fleming might make of the yam and sheeting; if he ■sold at a higher price, it was his gain; if obliged to sell for ■•a less рrice, it was his loss; in short, there is nothing in the ■evidence to give color to the suggestion of a copartnership. The matter will not admit of discussion.
No error.
Pee Cueiam. Judgment affirmed..