Gunnison v. Langley

85 Mass. 337

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1862
• Status: Published

Opinion

Chapman, J.

1. The first request by the defendants for instructions related to a particular piece of evidence, viz., the evidence that Noyes and Bailey had not heard of or known the name of “ Pentueket Ice Company ” until January 10, 1860. The request was that the jury should be instructed that, if they believed this, it was evidence tending to show that no partnership was formed between the parties prior to that" time. It is not obvious from the report that such an instruction would be correct as a legal proposition. It would depend upon other evidence, not reported. The judge was not bound to select one piece of evidence from among others bearing on the same point, and rule upon it; but he gave a correct instruction in regard to it, namely, that this circumstance must be taken by the jury as any other fact proved, and from all the facts they were to find whether or not such partnership existed at the time this contract was made.

2. There was nothing erroneous in the ruling as to what constitutes a partnership. As a question of fact, its existence was properly left to the jury.

3. As to the request by the defendants “ that the jury be instructed that if they found that there was no partnership of the defendants as between themselves, there was no evidence of a partnership as to third persons, and particularly as to this plaintiff, and that there was no evidence that the plaintiff gave credit to the alleged company on account of any acts of either Bailey or Noyes,” the whole evidence not being reported, this court has no means of judging from the report whether the instruction was properly refused or not. By referring to the minutes of the evidence, at the request of counsel, it appears that there was evidence not stated in the report bearing on the question. The instruction actually given was correct.

Exceptions overruled.