Schneider v. Fuchs ( 1907 )

PER CURIAM.

The defendants are proceeded, against as copartners, and, without any evidence establishing the existence of that relation, judgment was rendered against them as such for $121.50. The pleadings were oral. The action was for work, labor, and services and materials furnished, and the answer to the plea a “general denial and misjoinder.” The copartnership was put in issue by the general denial, and no recovery could be had against the defendants jointly, unless the proof showed such liability. Counsel for plaintiffs at the close of the entire case conceded that he had failed to prove a co-partnership by asking for leave to discontinue the action; but the court declined to grant the motion, and decided the case as above indicated. The motion should have been granted.

The judgment is reversed, and a new trial ordered, with costs to appellants to abide the event.