Berry v. Pelneault

Barker, J.

The contention that the sale which created the debt sued on was illegal is not argued and we treat it as waived.

The only question is whether there was any evidence that the defendant was a partner in the firm which bought the goods.

There was abundant evidence that from the beginning of the firm until after the debt sued on had been contracted the defendant was entitled to receive and had one half of the profits of the firm weekly less a small sum. Participation in the profits of a firm is evidence that the person participating is a partner, and that the persons managing the business are his agents. Eastman v. Clark, 53 N. H. 276. Whether the explanation testified to by the witness, that the defendant did not share in the profits as profits, but took them merely under the right of one of the partners who was his debtor and only as payment of his debt, was true or not was for the jury. There was testimony of contradictory statements on a previous occasion tending to discredit the testimony to that effect of at least one of the witnesses. The jury might well disbelieve the explanation. We have no occasion to discuss the question- whether if the explanation stated by the witnesses was true the defendant could have been held as a partner.

Judgment for the plaintiffs on the verdict.