Thornton v. Gibson ( 1871 )

Warner, Judge.

This was an action brought by the plaintiff, as the Receiver of the estate of J. A. Ralston, against the defendant, to recover the sum of $500 00, alleged to be due the estate of Ralston, for the rent of a store-house in the city of Macon. The defendant plead, that at the time the store-house was rented, there was a copartnership existing between the plaintiff, in his individul capacity, and the defendant, and one Aurelius Gibson, to do business as merchants, in the city of Macon, which copartnership was afterwards dissolved. On the trial of the case, after the plaintiff had closed his evidence, the defendant demiu’red thereto, and moved the Court to grant a non-suit, on the ground that the plaintiff’s evidence showed the existence of a partnership as alleged by the defendant, at the time the store-house was rented. The Court granted the non-suit, and the plaintiff excepted.

1. This was a demurrer to the plaintiff’s evidence, and the question for the decision of the Court upon that demurrer, was not as to the preponderance of the evidence in favor of the partnership, but whether there was any evidence denying the existence of the partnership at the time the store-house was rented. If there was any evidence on which the jury could have found that there was no partnership, then they should have been allowed to consider and pass upon that evidence: Tison vs. Yawn, 15th Georgia Reports, 491; Biggers vs. Pace, 5th Georgia Reports, 172. Thornton states in his answer to interrogatories, “that there was a proposition made by him, that when the defendant and his brother should come to Macon and commence business, that he would put in $5,-000 00 as a partner, to which the defendant assented; there was no partnership, and there was to be none until they came up to Macon and commenced business; they never came, and there never was any partnership formed.” It was error in the Court sustaining the demurrer to the plaintiff’s evidence as disclosed by the record, and granting the non-suit. The question of partnership or no partnership should have been submitted to the jury, under the evidence in this case.

Let the judgment of the Court below be reversed.