Thurston v. Horton , 82 Mass. 274 ( 1860 )

Merrick, J.

To maintain this action against James W. Horton, by whom alone it is defended, it was necessary that the plaintiffs should show, that either at the time when the contract for the steam-engine was made, or when it was finished and set up in the mill, he was a copartner of the other defendants. Upon this question they failed to produce sufficient evidence to establish the fact which it was incumbent on them to prove. James W. Horton was an owner as tenant in common with the other defendants of the mill in which the steam-engine was placed; but that did not constitute him a partner with them, either in the ownership of the machine, or in the transaction of the business in connection with which it was to be used. Beyond the mere fact of his interest in the real estate, the only additional evidence offered to prove that he was a member of the partnership was derived from what he had himself said upon the subject; and as nothing was shown to controvert his statements, they must of course be taken to be true. 1 Greenl. Ev. § 201. His remark upon one occasion in the mill that the engine was satisfactory proves nothing against himself; it referred only to the qualities or working capacity of the machine, and not at all to the liability of those by whom it was to be paid for. He said upon another occasion that when the mill was built he was one of the partners in the concern, but that he afterwards sold out to his brothers. This statement, so far from showing that he had any interest in the operations which were being carried on by the other defendants, when the engine was contracted for or put into the mill, has a tendency to show that he was wholly disconnected from them.- The whole evidence produced could not have warranted the jury in finding a verdict against him upon the issue to be determined; and if they had done so, we think the court, upon a motion to that effect, would have felt itself constrained to set it aside' as a verdict against evidence. Judgment on the verdict.