| Md. | Jan 7, 1869
delivered the opinion of the Court.
The appellants having abandoned their third, fifth and sixth prayers, our attention is directed to the rejection of their first, second and fourth prayers, and the instructions of the Court below, to the jury, in the first and second exceptions.
The first and second prayers were objectionable and properly refused, because they proposed instructions to the jury in relation to certain isolated and detached matters, not material, according to the current of all the testimony, to the establishment of the claim of the appellee, nor to the legitimate defence of the appellants. They could only embarrass and mislead the jury in considering the substantial questions
The first part of the fourth prayer presented merely an abstract proposition, which the Court on that account could not grant. The second part was not pertinent, because, if there were, in point of fact, no co-partnership between the appellants, the appellee would not be concluded thereby, as he was seeking to recover from the* appellant, Joseph A. Thomas, from the manner in which he held himself out to him as a co-partner; and knowing nothing to the contrary, had trusted him as such. If the jury believed from all the ■ evidence that the conduct of Joseph A. Thomas was reasonably calculated to induce such an impression on the mind of the appellee, who had trusted the firm under that belief, such deportment would make him liable as a partner to the appellee.
This conclusion might be deduced from presumption, from a consideration of all the circumstances, as well as by express acknowledgment of the fact.
However, the ruling of the Court, very clearly expounded the law applicable to the facts in the case. If the Court had submitted a proposition of law to the jury, or had blended law and fact as insisted upon by the appellants’ counsel, the instruction would not have been vitiated on that account, since the provisions of the Act of 1862, ch'f 154, because the objection was not made at the trial below.
But whether the appellant, Joseph A. Thomas, held himself out to the appellee as a co-partner in the firm of E. C. Thomas & Sons, was a fact to be ascertained by the jury from all the evidence in the case.
The further instruction of the Court requiring the jury, before they were authorized to find for the appellee, to be
The concluding portion of the instruction incorporates a sound and just principle of law, to wit, that notwithstanding the jury may find that Joseph A. Thomas was not, in fact, a partner as between him and E. C. Thomas, yet if by his conduct, including acts or declarations he held himself out to the appellee as a partner, he was certainly bound to make good that character to prevent fraud and deception upon others. In such cases they will be clearly held partners as to such persons. This doctrine is founded in the enlarged principles of natural law and justice, ex aequo et bono.
Eor wherever 'one of two innocent persons must suffer from a false confidence or trust reposed in a third, he who has been the cause of that false confidence or trust, ought to suffer, rather than the other. Story on Partnership, sees. 64, 65.
The instruction of the Court to the jury after they had retired, upon request being made by one of their number, referred to in the second bill of exceptions, explaining more fully to the jury the import of the instructions given in the first exception, was but a more detailed and emphatic statement of the law, and was warranted from the circumstances developed by the testimony in the trial of the case, and from the law applicable thereto.
We do not see that any injustice has been done to the appellants by the action of the Court below.
Judgment affirmed.