The opinion of the court was delivered by
Redfield, J.
The only point in dispute in this case, before the jury, seems to have been, whether the firm of Cram & Hutchinson consisted of Cram and Nathaniel Hutchinson, or of Cram and John Hutchinson. The suit being brought against Cram and Nathaniel Hutchinson, the effort of the plaintiffs was, to make proof of his liability, both on account of the costs, which would be lost in bringing a new suit, and also from the fact that Nathaniel Plutchinson was responsible, — Cram and John Hutchinson being understood to be insolvent.
1. We think the court decided correctly in regard to the effect of Nathaniel Hutchinson’s representing himself to be the partner of Cram, — and especially to the plaintiffs, — that it was sufficient to make him liable as partner, if the credit were given to the defendants under the expectation that Nathaniel^ Hutchinson was one of the firm, at thé time the credit was given. This is the kind of evidence usually resorted to by third persons, to prove a partnership, and all that ordinarily can be shown by them. It is the representing one’s self, or suffering one’s self to be represented, as a partrier, that creates a liability to third persons; and this is sufficient to create a *455liability, notwithstanding the truth should prove to be, that the person, so suffering himself to be held out as partner, in fact was not so. This is in order to preserve good faith and prevent fraud, and is almost the only ground of an estoppel in pais. If one man has made a representation, which he expects another may, or will, act upon, and the other does in fact act upon it, he is estopped to deny the truth of the representation. So, too, equally, when one remains silent and suffers another to make the representation. In a recent English case, — Sanderson v. Collman, 43 E. C. L. 115, — it was held, that, under the new rules of pleading there, estoppels in pais may be pleaded specially. That is not necessary, and not usual in our practice, and could not conveniently be done'in most cases.
2. The second point, made in the case, is, that, notwithstanding these representations, if John Hutchinson was in fact the partner, no recovery can be had in this suit. But the court do not consider this position well founded. Notwithstanding the firm in fact consisted of Cram and John Hutchinson, Nathaniel, by representing himself to be a partner, became liable for such debts as they contracted on their own and his credit jointly. The suit, then, being brought against two, only, of three joint contractors is no ground of defence on trial, and would not be good ground for abating the suit, if the plaintiffs were ignorant of the liability of John Hutchinson,— , as if he had been a silent partner, or if the fact of his liability had been kept from the plnintiffs by Cram and Nathaniel Hutchinson.
3. In regard to the depositions, — 1. That of Preston is well enough. It states that Howe asserted to another firm in Boston, that the firm of Cram & Hutchinson consisted of Cram and Nathaniel Hutchinson, and that they had agreed to assume the debts ofbne Loomis to that firm. Nathaniel Hutchinson was afterwards introduced, at the store of that firm, to this deponent, he being their salesman, “ and affirmed all that Howe had previously stated," and authorized that firm to charge Loomis’ debt to them. This is sufficiently definite. It must mean, either that Nathaniel Hutchinson re-asserted identically the same things that Howe asserted, or that he expressly assented to their truth. v
2. The deposition of Reed, that, at the time Cram took up the last bill of goods, he asserted that Nathaniel Hutchinson was his partner, might have been competent evidence, to show that the *456plaintiffs delivered the goods upon the credit of Cram and Nathaniel Hutchinson, and to rebut the defendants’ evidence, that they were in fact purchased upon the credit of Cram and John Hutchinson, — there being already sufficient evidence in the cáse to justify Cram in thus pledging the credit of Nathaniel Hutchinson, if he chose to do it. ' v
3. There is more difficulty in regard to the deposition of Lyman. This deposition was objected to generally, and admitted. This decision of the court, upon the most favorable construction, must be considered equivalent to saying, that the deposition contained some evidence, competent to be weighed by the jury; and as no part of it seems to have been excluded from the consideration of the jury, the natural conclusion would be, that the jury would consider- it all competent evidence. .
The evidence of this witness, so far as it affects the main point in the case, seems to have been altogether hearsay, or common -reputation in the neighorhood, — neither of which is competent to prove the fact of a copartnership. 1. The witness states, minutely his intimacy with the business of the firm for many months, without saying that he knew which of the Hutchinsons was the partner,- — which he could easily have done, if such had been the fact. 3. That, being inquired of by the plaintiffs, he told them Tie considered the defendants perfectly responsible, — which is, doubtless, understood by all as equivalent to an assertion that he considered Nathaniel Hutchinson the partner ; — but why so 1 That is left to conjecture. 3. That he never heard a suggestion that John Hutchinson was the partner, — which is equivalent to saying that every body considered that Nathaniel Hutchinson was the partner, — until the witness left for Corinth. 4. He was never told by either of the Hutchinsons, or Cram, or Howe, who constituted the firm, but he founded bis opinion upon “ the remarles of townsmen and his Tmowledge of the circumstances of the Hutchinsons. This testimony was clearly incompetent, and very well calculated to mislead the jury.
Judgment reversed, and new trial.