l. Where the question before the jury is whether F. (the
defendant) was a partner with K., so as to make him liable for the
debts of the firm, K.'s declarations to third persons are not
admissible in favor of the plaintiffs until they have established a
prima facie case of partnership by other evidence.
2. The admission of the defendant and the deposition of B. to
the effect that the defendant had procured for K. a loan of money
to be used in a purchase of cotton, and that K. had voluntarily
promised to give the defendant a part of the profits, if any were
made, for his assistance in procuring the loan, when no sum or
proportion of profits was named, does not raise such a presumption
of partnership.
3. Nor is such evidence sufficient to require the Court to
submit the question of partnership to a jury, and its instruction
to find for the defendant was right.
4. Such instruction is right where the court would decide for
the defendant on a demurrer to all the evidence, and the true rule
in the case is that if, to the judicial mind, the evidence, tested
by the law of the issue and the rules of evidence, is not
sufficient to justify a jury fairly and reasonably in finding a
verdict for the plaintiff, the court should so tell the jury.
5. If the court can see that if a verdict for the plaintiff
should be rendered, it ought to be set aside as being unwarranted
by the testimony, such instruction should be given in advance of
the verdict.
R. & H. Pleasants sued Fant in the court below, and the
single question in dispute was whether the defendant was a partner
in the firm of Keene & Co. so as to charge him with a debt
conceded to be due by that firm to the plaintiffs, arising out of
some transactions in cotton. The case was tried before a jury, and
when the testimony was through, both plaintiffs and defendant
prayed instructions of the court, which were all refused, and the
court said to the jury,
"There is no evidence in this cause from which the jury can find
that the defendant had such an interest in the purchase and sale of
the cotton by Keene & Co. as will make him, the defendant, a
partner as to third persons, and the jury will therefore find their
verdict for defendant."
The bills of exception disclosed the testimony on which this
instruction was founded, and the question now before
Page 89 U. S. 117
this Court was whether the verdict founded on that instruction
should be set aside and the judgment reversed.
The direct testimony offered to prove the partnership was
confined to the statements of Fant in a conversation with one of
the plaintiffs and a clerk in their office, and the deposition of
Keene, a partner of Keene & Co. The substance of the former was
that Fant denied that he was a partner, said he knew from some
experience what was necessary to make him a partner, and admitted
that he had procured for Keene a loan of $10,000 in gold from a
bank of which he was president, and that he was to receive part of
the profits of Keene's venture in purchasing cotton with that money
as compensation for procuring the loan. What portion of the profits
he was to receive was not stated.
Keene in his deposition denied that Fant was a partner in the
transaction, but said that Fant had negotiated for him the loan
from the bank, and he had made Fant a promise,
which was
entirely voluntary, to give him a part of the profits he might
realize, and that he had mentioned
no particular part or
proportion of the profits to be so given.
After the admission of this testimony, the plaintiffs, on the
ground that they had sufficiently shown a relation between Fant and
Keene to admit of Keene's declaration to third persons as to Fant's
interest, offered to prove by one of the plaintiffs that Keene had
told him Fant was a partner, and asked that the plaintiffs would
advance money enough on the cotton then in their possession as
brokers to enable him to pay Fant his money and let him out of the
firm. This offer was objected to and the objection sustained by the
court.
A large amount of testimony, however, was admitted the object of
which was to show that Fant, as president of the bank, was in the
habit of using the money of the bank in private speculations
without the knowledge of the directors, but which was very feeble
and far from establishing that fact.
Verdict and judgment having been given for the defendant, the
plaintiffs brought the case here.
Page 89 U. S. 119
MR. JUSTICE MILLER delivered the opinion of the Court.
If the admission of Fant to plaintiffs, and the evidence of
Keene, are insufficient to raise a
prima facie presumption
of partnership, then Keene's declarations on that subject were
inadmissible, and the court was right in its instruction to the
jury. If it was sufficient for that purpose then it was erroneous,
and the evidence here offered of Keene's statements to plaintiffs
was improperly excluded.
The case rests after all on the question whether in Fant's
declaration to the plaintiffs and Keene's deposition there was
evidence of a partnership on which a verdict for plaintiff could
have been sustained.
We have been favored by counsel with a reference, very learned
and very exhaustive, to the authorities on the question of how far
or when a participation in the profits subjects a party to the
liability of a partner to third persons. And it must be confessed
that some of the discriminations, where profits are used as
compensation for definite services, are very nice.
We do not think that a close examination into these is necessary
in this case. According to Keene's testimony, there was clearly no
contract binding him to divide the profits with Fant. He says the
promise was entirely voluntary,
Page 89 U. S. 120
and that no portion of the profits was mentioned. By voluntary
he undoubtedly means that it was not a part of the agreement by
which he obtained the money, but a gratuitous promise to reward his
friendship if he succeeded in his venture.
Fant's statement to the plaintiff, as detailed by the latter,
differs but very little from this. As a compensation for obtaining
the loan, he says that Keene agreed to allow him a part of the
profits, but how much or what proportion, or whether it was a
definite sum to be paid out of the profits, or a proportionate part
of the profits, is not shown.
If one of the most approved criteria of the existence of the
partnership in such cases be applied to this, namely the right to
compel an account of profits in equity, the evidence totally fails.
In a suit for that purpose, founded on this precise statement, no
chancellor would hesitate to dismiss the bill.
But we are pressed with the proposition that it was for the jury
to decide this question, because the testimony received and offered
had some tendency to establish a participation in the profits, and
the question of liability under such circumstances should have been
submitted to them with such declarations of what constitutes a
partnership as would enable them to decide correctly.
No doubt there are decisions to be found which go a long way to
hold that if there is the slightest tendency in any part of the
evidence to support plaintiff's case, it must be submitted to the
jury, and in the present case, if the court had so submitted it,
with proper instructions, it would be difficult to say that it
would have been an error of which the defendant could have
complained here.
But, as was said by this Court in the case of the
Improvement Company v. Munson, [
Footnote 1] recent decisions of high authority have
established a more reasonable rule -- that in every case, before
the evidence is left to the jury, there is a preliminary question
for the judge not whether there is literally no
Page 89 U. S. 121
evidence, but whether there is any upon which a jury can
properly proceed to find a verdict for the party producing it, upon
whom the onus of proof is imposed.
The English cases there cited fully sustain the proposition,
[
Footnote 2] and the decisions
of this Court have generally been to the same effect.
In the case of
Parks v. Ross, [
Footnote 3] this Court held that the practice of
granting an instruction like the present had superseded the ancient
practice of demurrer to evidence, and that it answered the same
purpose and should be tested by the same rules, and in that case it
said the question for the consideration of the court was whether
the evidence submitted was sufficient to authorize the jury in
finding the contract set up by plaintiff. And in
Schuchardt v.
Allens, [
Footnote 4] this
case is referred to as establishing the doctrine that if the
evidence be not sufficient to warrant a recovery, it is the duty of
the court to instruct the jury accordingly.
In the case of
Pawling v. United States, [
Footnote 5] the Court, by Marshall, C.J.,
said:
"The general doctrine on a demurrer to evidence has been
correctly stated at the bar. The party demurring admits the truth
of the testimony to which he demurs, and also those conclusions of
fact which a jury may fairly draw from that testimony. Forced and
violent inferences he does not admit, but the testimony is to be
taken most strongly against him, and such conclusions as a jury
might justifiably draw the court ought to draw."
It is the duty of a court in its relation to the jury to protect
parties from unjust verdicts arising from ignorance of the rules of
law and of evidence, from impulse of passion or prejudice, or from
any other violation of his lawful rights in the conduct of a trial.
This is done by making plain to them the issues they are to try, by
admitting only such evidence as is proper in these issues and
rejecting all else; by
Page 89 U. S. 122
instructing them in the rules of law by which that evidence is
to be examined and applied, and finally, when necessary, by setting
aside a verdict which is unsupported by evidence or contrary to
law.
In the discharge of this duty, it is the province of the court,
either before or after the verdict, to decide whether the plaintiff
has given evidence sufficient to support or justify a verdict in
his favor. Not whether on all the evidence the preponderating
weight is in his favor -- that is the business of the jury -- but
conceding to all the evidence offered the greatest probative force
which according to the law of evidence it is fairly entitled to, is
it sufficient to justify a verdict? If it does not, then it is the
duty of the court after a verdict to set it aside and grant a new
trial. Must the court go through the idle ceremony in such a case
of submitting to the jury the testimony on which plaintiff relies
when it is clear to the judicial mind that if the jury should find
a verdict in favor of plaintiff, that verdict would be set aside
and a new trial had? Such a proposition is absurd, and accordingly
we hold the true principle to be that if the court is satisfied
that, conceding all the inferences which the jury could justifiably
draw from the testimony, the evidence is insufficient to warrant a
verdict for the plaintiff, the court should say so to the jury. In
such case, the party can submit to a nonsuit and try his case again
if he can strengthen it, except where the local law forbids a
nonsuit at that stage of the trial, or if he has done his best, he
must abide the judgment of the court, subject to a right of review,
whether he has made such a case as ought to be submitted to the
jury; such a case as a jury might justifiably find for him a
verdict.
Tested by these principles, we are of opinion the circuit court
ruled well. If plaintiffs had secured a verdict on the testimony
before us, we think that court ought to have set it aside as not
being warranted by the evidence. It is not possible with any just
regard to the principles of law as to partnership and the rules of
evidence as applied to this testimony
Page 89 U. S. 123
to come fairly and reasonably to the conclusion that Fant was
Keene's partner in this transaction.
Judgment affirmed.
[
Footnote 1]
81 U. S. 14
Wall. 448.
[
Footnote 2]
See Jewell v. Parr, 13 C.B. 916;
Toomey v. L. &
B. Railway Co., 3 C.B. (N.S.), 146;
Ryder v.
Wombwell, 4 Law Reports, Exch. 33.
[
Footnote 3]
52 U. S. 11 How.
362.
[
Footnote 4]
68 U. S. 1 Wall.
359.
[
Footnote 5]
8 U. S. 4 Cranch
219;
See also Bank of the United States v.
Smith, 11 Wheat. 171.
