"WESTOOTT, J.,
delivered the opinion of the Court.
The principal question in this case is, whether, as between the parties Johnston and Eichelberger, a partnership existed at the time of the institution of this suit in the goods, which is the subject matter of the controversy. If it did not exist, then the primary and essential equity in the case is wanting, and it must fail.
Eichelberger insists, first, that such partnership existed by virtue of an instrument of 'writing executed on the 2d of March, A. D. 1867.
In the second place, he contends that if under the written instrument a partnership did not then exist, it existed by virtue of the terms of this instrument, coupled with the acts of the parties, which transpired- between the date of its execution and the institution-of this suit.
To determine the first question, we have only to construe the written instrument executed by the parties. To determine the second question, involves a consideration of all the acts of the parties, including the instrument. The instrument is as follows: '
STATE OF
Mabion County. '
-f
This Indenture, Made this second day of March, in the ■year of our Lord one thousand eight hundred and sixty-seven, between Abner D. Johnston and Adam L. Eichelfeerger:
[237]*237Whereas, The said Abner D. Johnston has purchased a certain stock of goods, wares and merchandise in the city of New York, consisting of-, which said stock of goods, wares and merchandise are to be shipped and transported to the town of Ocala, in the county and State aforesaid;
Now this indentwe, witnesseth, That the said Abner D. Johnston, for and in consideration of the covenants and agreements hereinafter entered into by the said Adam L. Eichelberger, hath bargained and sold, and doth by these presents bargain and sell unto the said Adam L. Eichelberger, one-half of the aforesaid stock of goods, wares and merchandise.
And the said Adam L. Eichelberger, for and in consideration of all the above, hath bargained, covenanted and agreed, and by these presents doth bargain, covenant and agree, to pay to the said Abner D. Johnson one-half of the original cost price of the said stock of goods, wares and merchandise, together with one-half the costs and charges that may or shall be expended in transporting the aforesaid stock of goods, wares and merchandise to the aforesaid town of Ocala.
And it is agreed between and by the parties to these presents, that the aforesaid Abner D. Johnston and Adam L. Eichelberger will sell the said stock of goods, wares and merchandise in the said town of Ocala as equal copartners; and also, that they shall and will bear, pay and discharge equally between them all rents and other expenses that may be required or incurred in the said stock of goods, wares and merchandise, and that all gains, profits and increase that shall come, grow or arise from or by means of the sale of said stock of goods, wares and merchandise shall be divided ' between them equally, and that all loss that shall happen through or by means of the selling of said stock of goods, wares and merchandise shall be borne and paid between them equally.
[238]*238In witness whereof, The said parties have hereto set ■their hands and seals, the day and year above written.
A. D. Johnston, [l. s.'J
A. L. Eichelberger. [l. s.]
Signed and sealed in the presence of Stephen C. DeBruhl,
W. J. McEddy.
This instrument, when executed, was left in the possession of a third party, the defendant, DeBruhl, and the answer of Johnston, which is responsive to the bill in this particular, alleges that it was left in the possession of this third party upon the distinct understanding between complainant and himself that it was to be in his (defendant’s) control until complainant complied with his agreement to pay for the goods.
Whatever inference may have arisen from a delivery of this instrument, therefore, to the vendee, Eiehelberger, cannot arise in this case.
The contract, so far as-' it relates to an acquisition of an interest in the goods by Eiehelberger, is contained in that portion of the instrument which precedes the mutual covenant that the parties will sell the goods in copartnership.
Eiehelberger could not be a partner unless he acquired an interest. This was certainly a condition precedent. If he did acquire an interest, its acquisition must have been under this part of the agreement.
Johnston bargains and sells one-half of the goods. That constitutes the contract upon his part; ETothing is said as to the price, or a method of ascertaining the price, or as to the mode or time of payment. The price is an essential element of a sale. In cases arising under the statute of frauds, it has been repeatedly held that the price enters into the legal contemplation of a bargain, and that a note or memorandum, which does not furnish evidence of the price agreed upon, is not sufficient to take a contract of sale out of the statute. 5 B. & C., 583 ; 2 Kent’s Com., 477 ; 15 [239]*239Vt., 685 ; Hill on Sales, 230. So also is payment made or -.to be made an essential element to a sale. If no payment •is made and none to be made, it is a mere gratuity. 3 Gray, 113. To determine, therefore, other essential elements of .the contract, we must look to the remainder of this instrument. All of it should be construed together, and the intention of the parties derived from a consideration of the -whole, and a consistent construction given to each part if possible.
Upon examination, we find that it consists of a “ bargain ’’ and agreement by the vendee to pay to the vendor one-lialf -oí -the original cost of the goods, together with one-half .of .the charges expended and to be expended in transporting -them to Ocala. The instrument, therefore, amounts to this: •X bargains and sells to E. one-lialf of a quantity of goods mot then in his actual possession. E. bargains to pay oneItalf ■ cost price and charges. The charges are not yet incurred, the cost not yet ascertained, the goods not yet arrived, so that these matters can be done by buyer and seller. The.contract as to payment was simply to pay without specifying time. There was no express agreement to extend .a, credit. The general rule in reference to payment is, that when no time is fixed for payment, the sale is for cash. In .-this case, as the price was to be ascertained at a future date, .the payment must be postponed to that time. There is nothing in the contract which can extend it beyond that time, . and it is extended to that time only beccmse the price was to - be then ascertained. In this case, on account of the character , of the interest which the vendee was to acquire, the interest • of a partner, there was to be no actual separation of the -goods or actual delivery of the one-half. •»
I-n -the sale of personal property, where anything remains fco. be done before the sale can be considered as complete, whether to be done by the vendor or vendee, as between the parties themselves, the right of property does not pass.
As between buyer -and seller, there remained to be done in [240]*240this case certain acts which were necessary to ascertain the; price and which fixed the amount to be paid, and for this reason the time of payment, where the sale is of an undivided half, as in this case, the acts' stated above are about everything that could, under any circumstances, remain to-be done, as no separation or actual delivery is required.
If the interest to be acquired by the vendee had been such as admitted an actual delivery, and had the goods been actually present, payment and delivery under such a contract must have been simultaneous acts. 6 Cowen, 110. Because there was to be no actual delivery in this case, it does not follow that the property would pass without payment. The result is, that the vendee must have paid at the proper time,, before a property would pass.
Eo credit was agreed on here. Payment was a conditions precedent to the passing of the property. There could he no payment until the price was ascertained—no price could he ascertained until charges were incurred and the goods arrived. These things had to happen and to he ascertained as-, indispensable requisites to payment. It was urged in argument, and it is true, that a' covenant is a good considerations for a sale; but if the covenant itself is to pay generally,, specifying no time, it cannot be inferred from this that any eredit was to be extended. The rule is, that where no credit: is agreed on, or is necessarily implied, the property does not: pass without payment or actual delivery, which is generally a waiver. Looking at the entire instrument our conclusion is, that the contract was executory; that there was no completed sale, and that no present right of property passed to Eichelberger. The following cases sustain the correctness of this view. Some of them go much further than this case ~ 6 East, 614; 1 American Law Rev., 425 ; 1 Sand., 297; % Wend., 406 ; 15 Johns., 351; 3 Wend., 112; 3 Cowen, 84 ; 6 Cow., 101 ; 13 Mass., 88 ; 25 Penn., 208 ; 4 Seld., 291; 10 Hump., 337; 21 Vt., 147 ; 12 Pick., 83 ; Amer. Law Reg., May, 1869, 319; 1 Camp., 427. While the facts are not [241]*241similar and the eases widely different, yet the general views expressed by this court in the case of Stafford vs. Anders, 8 Fla., 40, go much further in the requisites laid down t® make a sale complete than we do in this case. It appears from the evidence that there were unadjusted accounts be- ■ tween the parties at the time this instrument was executed. It is insisted that Johnston was indebted to Eichelberger isa a sum equal to the cost and charges of one-half of the goods, and Eichelberger insists that the existence of this debt was a virtual and legal payment according to the terms of the contract. As this matter is several times mentioned in the testimony, it is proper, while considering the effect of this instrument in other respects, to determine it in this respect.
Mr. Hilliard, in his treatise upon sales, remarks: “ With. regard to the payment of goods purchased in conformity te the general rule, which requires such payment to perfect & sale, a vendor is not bound, without special agreement, to receive anything for the price except cash”
The case of Lorin vs. Smith, 1 Denio, 573, was a sale <s£ merchandise for cash, to be paid for on delivery. The vendee tendered the overdue note of the vendor. It was held insufficient.
Had the property in the goods passed under this agreement, then in an action for the price, E. might have set off J.’s indebtedness, although his (E.’s) contract was to pay ready money. That is the case cited by appellees, and is net this case.
It only remains to consider the subsequent acts of the parties, coupled with this instrument.
Did a partnership exist by virtue of the two combined® The evidence upon the subject may be divided into tw© parts: Eirst. The acts and declarations of the parties before Johnston left for Hew York. Second. Acts and declarations of the parties after his return and before the commencement of the suit.
It appears that Johnston left Ocala for New York in &■ [242]*242few days after the execution of this instrument, and before ike arrival of the goods. Hearing before his departure that ike goods were about to reach Ocala, he made arrangements to have them marked by clerks employed by Eichelberger an his- own store in the same town. As to this matter, which as all that happened before Johnston left, the testimony is substantially as follows :
W. P. Trantham, an employee of Eichelberger, testifies that a short time after Johnston returned from the North, k© and Eichelberger came to me ; Johnston gave me the in-dices of all the goods, and said that he wanted me and Mr. Hoof to mark the goods when they arrived; he also said •Shat he wanted me to compare the prices with the prices of .gsjods Eichelberger had purchased about a year before ; Mr. Boof and I were then employed exclusively by Eichelberg>er • the goods, when they arrived, were opened, marked and left by us in charge of the clerks in A. D. Johnston’s store.
Wm. H. Anderson testifies, that the goods were opened ®d marked by Mr. Eichelberger’s clerks, assisted by himself asad Mr. Miller ; Johnston was absent during this time, and Eichelberger gave instructions and exercised general control. Eichelberger, who was examined, says nothing in reference to what happened between Johnston and himself before Johnston left. ■
Johnston testifies, in reference to this matter, that before Se left he received notice that the goods would arrive soozz.; &at he etnployed D. A. Miller as clezzk, and authorized Eichelberger to hire Anderson, and requested Eichelberger when the,goods came to hand to have them opened and let the clerks commence selling ; that he did not know when he would return, and he did not wish the goods to remain boxed up ; that he authorized Eichelbez’ger, as his agent, to receive, open and znark the goods on their az’rival; that he would have entz-usted him to do this if he had not been his agent, as he had the clerks to do so ; that he did not do this [243]*243on the faith of the agreement. Upon the cross-examination, he states that he never told Eichelberger in express language that he was to act as his agent; that he agreed to pay him no compensation for the service ; he simply told him what to do. He says that he always refused to acknowledge any interest in Eichelberger until he (Johnston) was paid.
Eichelberger states, in his bill, that Johnston was indebted to him at the time of the execution of the articles of agreement, and alleges that he “ has always been ready and willing and repeatedly offered to set off this amount against his indebtedness to Johnston,” which said Johnston refused to accept, “ but demands that your orator make his payments in cash,” while he himself refuses to pay any of his indebtedness to your orator, by reason of all of which your orator has always deemed himself excused from any further or other compliance with his said stipulation, and has deemed the said payment made, virtually and legally, by the existence of the said debt.
This is substantially what occurred, according to the allegations of the pleadings and the evidence of the witnesses.
Eichelberger’s control in Johnston’s absence, to have any effect, must be proved to have been done in accordance with authority from Johnston, and the authority, so far as proved, does not establish anything beyond a simple request to have the goods marked and opened. It appears for some reason, that Johnston was desirous that a price should be fixed upon his goods, with reference to the prices charged by Eichelberger for goods sold by him. This was perhaps to avoid any difficulty with E. as to estimates of charges. However this may be, Johnston, neither by his acts nor language, admitted a property of Eichelberger in the goods. He gave the instructions in his own name. He swears that he never intended E. should have an interest until payment, and E. admits that Johnston refused his repeated offers of his own paper in payment for the goods.
This evidence discloses no act which amounted to a waiver [244]*244of his rights of payment, and it does not establish a partnership. What was done, even according to the witnesses of complainant, was nothing more than simply giving an authority, in Eichelberger’s presence, to Eichelberger’s em-. ployees, in his individual store, to open and mark the goods upon their arrival, which act was performed by these employees, assisted by others in the employment of Johnston. When the goods were marked, they were left in A. D. Johnston’s store.
After the latter part of May, it is admitted that Johnston took exclusive control of the goods, denying all interest in Eichelberger. Johnston returned from ETew York about the first of April. We proceed to examine the evidence covering this period, and to state its results as to the rights of the parties.
W. P. Trantham, an employee of Eiehelberger’s, and who was not connected with the store in which these goods were, says, in his direct examination, that during this time a mercantile business was carried on with these goods; that it was Ms wnd&rstcmdmg that the business was carried on by Johnston & Eichelberger. The subsequent portion of his direct examination relates to a division of the goods in the latter part of May, which we will consider subsequently in connection with all the testimony relating to that matter. Upon the cross-examination, the witness states that he was in the exclusive employment of Eichelberger, in E.’s individual store; that his understanding that the business was carried on by Johnston & Eichelberger was derived from Eichelberger, who told him so; that he was never told so by Johnston positively, but has heard Johnston speak of the mercantile business as our business, in speaking with Eichelberger at different and several times.
D. A. Miller.—This witness, upon his direct examination, testifies that he was a clerk in the store; was employed by Johnston early in March; that Johnston, when he employed him, said that a person named Oxner expected to be em[245]*245ployed by him, but that Eichelberger objected; that I would be assisted by a clerk who was highly recommended, and had been employed by Eichelberger, and that he and Eichelberger would sell out that stock of goods and then get a large stock of groceries. (This no doubt all occurred before Johnston left, and even before the goods arrived.) The witness says further, that Eichelberger on one occasion took some flour from the store; that he heard Johnston remark that Eichelberger, instead of letting the goods remain in the store to be sold to defray the planting expenses, was taking them to his own store, charging himself at cost prices, and gelling them out at a profit. The witness testifies that he camnot say that he ever heart'd Johnston admit amy Interest of Eichelberger at arny other time.
W. J. McEddy testifies, that he heard Johnston say that he had sold Eichelberger a half interest in his store, but did not know how about the fay; heard Eichelberger at one time ■say to J., let us get money for things for the plantation out ■of the common store; we then went to the store hnown as A. D. Johnston's store, and I got the money.
W. II. Anderson testifies: Was the book-keeper; store was known as A. D. Johnston’s store ; was so advertised; was employed as clerk by Eichelberger ; while Johnston was away, received instructions from Eichelberger until Johnston returned; on his return, he assumed control of the store; although present in the store, he cannot say that Eichelberger at any time after Johnston returned gave any directions as to the management of the store or the sale of goods, or exercised in any manner any control or authority in the store; he came and purchased goods, and they were charged to him; the clerks in the store canned it on as Oapt. Johnston’s store ; he had the principal management and control of it after Oapt. Johnston returned'; Eichelberger controlled the store until Johnston returned from the North; afterwards Johnston was at the store almost every day, and we regarded him as the manager; Mr. Eichelberger gave [246]*246instructions, I recollect, in one instance, which Capt. Johnston countermanded ; we regarded Mr. Eichelberger as interested in some way.
Eichelberg’er, although examined as a witness, was not interrogated in reference to the particular matter of admissions as to partnership relations. His idea was, that he was entitled to an equal interest in the goods, because Johnston was indebted to him in an amount equal to the sum he was to pay.
Johnston testifies that he does not recollect all the conversations he may have had upon the subject, but that he never intended that Eichelberger should have any interest until he paid for the goods, and that he repeatedly told him so. This agrees with Eichelberger’s admissions in the bill. Johnston says : “ I refused all the time to let him have the goods until he paid for them, both before I went and after I z’etizzmed.”
Jas. H. Johnstozi’s testiznony relates almost exclusively to znattez'S occun-ing in view of agreements made looking to an arbitration. His testimony, so far as it relates to the matter of paz’tnership, is that the store was known by common reports as the store of Johnston & Eichelberger; that a book in which accounts were kept was marked A. D. Johnston & Co., and that during his presence in the store for a few days in the latter part of May, when the parties had- agreed to divide the goods, and to an arbitration of all matter’s of difference, they both appeared to exercise equal control over the goods. They spoke of the stock or store as our stock and our store.
What does this testimony amount to ? Leaving out Trantham’s understanding, derived from what Eichelberger told him, his testimony amounts to no more than that he heard Johnston, in conversing with Eichelberger at different and several times, speak of the business as our business.
The other witness, Miller, says that Johnston, when he employed him, which was no doubt befoz-e he went [247]*247North, and after the execution of the agreement, seemed desirous of employing persons acceptable to Eichelberger. He says that beyond Johnston’s objecting-to Eichelberger’s taking goods and selling them in his own store at a profit he could not say that he ever heard Johnston admit any interest of Eichelberger. McEddy says that Johnston said he had sold an interest to Eichelberger, but did not know how about the pay; that he heard Eichelberger mention the'stere once, in Johnston’s presence, as the common store.
Anderson, who was the book-keeper, says that the store was advertised as the store of A. D. Johnston, and was s® known by the clerks, but that they believed that Eiehelber-ger had some interest; that Johnston, on his return froM New York, assumed control of the store ; that although ths witness was present in the store most of the time, he cannot; say that Eichelberger gave any general directions or exercised any control after Johnston returned; that he recollects one instance only in which Eichelberger gave instructions,-, and that Johnston countermanded them ; that he has heard Johnston say that Eichelberger had not come up to ike agreement, and he was therefore unwilling to allow him aan interest in the goods.
Eichelberger says nothing upon the subject when exaoar ined as a witness, while in his bill he admits that Johnstoau demanded cash for his goods; and Johnston states expressly that while he did not recollect all the conversations he had with Eichelberger, he did refuse at all times to allow him .a®, interest until he paid for it.
Jas. H. Johnston testifies that the parties spoke of iias store as our store, and that a book in which accounts wee© kept was marked Abner D. Johnston & Co.
What appears here is not sufficient to’prove a waiver fay Johnston of his right to payment .for the goods, or aa acknowledgment that he consented to Eichelberger’s having; the interest of a copartner without, payment according to the agreement. Calling the store our store, our business, [248]*248©pening the hooks in the name of the contemplated firm, expressions of intention upon the part of the parties to sell ©ut that stock and buy another, are expressions and acts which each of the parties might indulge in without a waiver ©f antecedent rights. Especially is this true when the partrner in possession, Johnston, exercises .general control, and chows a claim of exclusive general control by countermanding the orders and directions of the contemplated partner. They are expressions made in view of a compliance with the agreement, and. in the belief that everything would be done that should he. It shall not be held, under such circumstances, that Johnston should have directed his intended partner to remain out of the store, and it was perfectly natural that they should have spoken of the business in the manner , that;they did. Expecting and insisting upon payment, Jolm»ton may have permitted the whole community to infer that such a. relation existed by his silence, or by acts of 'common ©ourtesy extended to his contemplated partner, relying upon compliance by bim with bis contract; and yet, if be failed ¡jo perform bis covenants, these acts, done upon the understanding of payment and fair dealing upon his part, could sot and should not operate to excuse him from .payment. Acts which may be attributed to common courtesy and to ¡the confidence which generally exists between persons who ■liave agreed to enter into the intimate confidential relation ■©f partners, should not beheld to-be a waiver of conditions - «accessary to be performed before that relation is to exist tender their contract.
'These views and conclusions are fully ■sustained.by the adjudications of the courts in like cases.
We find this case in 1 Freeman’s Chy., 351: A agreed f«»give his notes for a certain sum to B for half of B’s stock mdrade, the t wo to be partners thereafter. B, believing that ArCOuld execute the notes at any time, suffered him to act as A,partner, and to buy and sell goods in the partnership Bame.' A failed to execute the notes for his share of the [249]*249stock, and advanced no money to the concern. Held, that the delivery of the notes was a condition precedent, and that no partnership existed until A complied with it; that a court of equity would lend B its aid to recover the goods; that A would have no right to an account and division of the profits since their connection, and that the fact that the parties held themselves out to the world as partners, was not a waiver of the original understanding ; that a waiver does not take place unless there is clear evidence of an abandonment of the original terms or the substitution of new ones.
Even if it was admitted that the parties, Johnston and Eichelberger, held themselves out to the world as copartners, which is not the fact, yet Johnston’s always demanding payment before he would admit Eichelberger’s interest, and E.’s noncompliance with his part of the bargain and agreement, would prevent the existence of the relation of copartners inter se. The case of Bird vs. Hamilton, 1 Walker’s Chy., 361. In this case the books were kept for thirty days in the name of the contemplated firm. The language of the articles was, that the parties “ agreed to enter hereby into partnership.” The articles, however, provided that Bird was to furnish one-third of the capital stock. This he neglected to do. The court held that where the question of partnership arises, not with third persons, but between the parties themselves, the agreement out of which the supposed partnership arises is to be construed as any other instrument between the parties; that is, that their intention should control, and that while in this case the letter of the agreement imported a partnership in presentí, yet it was apparent from the whole instrument that the contribution of one-third of the capital stock by Bird was a condition precedent to the existence of a partnership inter se. The court held further, that the fact that the business was carried on for the period of thirty days in the name of the proposed firm, was no waiver, and that the party in default was not entitled to the rights of a part[250]*250ner. The chancellor, in this last case, speaking of the act of carrying the business on in the name of the firm for a short period, says: “ It should not he construed into a waiver of the agreement requiring Bird to furnish a third of the capital. To give such a construction to what was intended as a favor to Bird, and nothing more, would be hard indeed. It would he saying to persons hereafter in like circumstances, show no indulgence whatever to a defaulting party, or it will be construed into a waiver of your rights.”
in „the latter part of May, it appears that the parties agreed to submit all their business matters to arbitration for settlement, and it is claimed that what transpired on that occasion is material in this connection.
Everything which occurred at this time which may be considered as admissions of the relation of partnership, has been considered. The matter of arbitration, with all agreements entered into with strict reference to it, became inoperative by revocation of the authority given by Johnston, and it is not perceived how this matter is material. The parties did not seek to form a partnership at this time, but to settle all mutual accounts. We will, however, examine the testimony, and state our views in reference to it.
Jas. H. Johnston testifies : I was instructed to take an account and make an equal division of stock, one part to be set aside for A. D. Johnston, the other for A. L. Eichelberger ; tiiis division was made in the latter part of May ; I received these instructions from A. D. Johnston, A. L. Eichelberger being with him ; with the assistance of the clerks I took the stock, and after several days’ labor, divided the goods ; I set apart one-half for Johnston and the other for Eichelberger, each so marked as to distinguish them : each of the parties took goods from their respective parts, and spoke of the shares as their shares ; having divided the goods according to instructions, I left them in the store in charge of the clerks.
S. D. McConnell testifies : Was called on. by Eichelber[251]*251ger to act as an arbitrator in adjusting some accounts between him and Johnston ; both were present and took part in giving the instructions we were told that it was desired that we should adjust all accounts then existing between the parties, including the store in Ocala and the accounts in the farming copartnership; the manner of dividing the goods was discussed in my presence; they agreed to call in James Johnston to take an inventory and divide them equally; Johnston said he could dispose of his part to better advantage ; nothing was said when we received the instructions as to E.’s paying cash for the goods ; I heard Johnston say, during the progress of the arbitration, that it was not right that Eichelberger should get his goods at cost, while Eicheluerger was charging him full retail prices. The witness gives his opinion as to the matters done and the acts of the parties in his presence. He says : From what was said in my presence by both parties, I was satisfied at the time that the amount that was due to Eichelberger from Johnston on store account, when ascertained, was to be allowed.
"W. P. Trantham testifies to the fact of division, and that he received goods from the store, at Eichelberger’s request, from a pile which one of the clerks pointed out as belonging to Eichelberger. Miller testifies that he was instructed by Johnston to divide the goods in two piles, one for himself and the other for Eichelberger ; that Johnston said that he and Eichelberger could not get along together ; that he was afraid E. would swindle him ; that he would rather have five dollars than a thousand with some one else. The goods were divided and remained so several days, when Johnston instructed me to put them together again, and I did so; I delivered some of the goods after they were divided to Eiehelberger; Johnston gave as his reason for putting the goods together again, that he had sold E. a halfi interest, but that he could not “ ante up,” and that he would not allow him an interest in the goods until he did.
Anderson testifies that he knew of the division, and that [252]*252he heard Johnston say that E. had not come up to the agreement, and that he would not allow him. an interest in the goods.
Eichelberger, in his amended bill, alleges that at the time of the sale and thereafter, Johnston was indebted to him in a sum equal to the amount due for the goods, and that he has always been ready and willing to set off this amount against his indebtedness to Johnston, “ which said Johnston refuses to accept, but demands that he pay in cash, while he refuses to pay any of his indebtedness to your orator; by reason of all of which, your orator has deemed himself, as he still does, discharged and excused from, any further or other compliance with his said stipulation to pay his proportion of the amount of said goods and expenses to said Johnston, and has deemed this said payment as made virtually and legally, by virtue of the existence of the said unpaid debt.” As a matter of course, these admissions in the bill of the plaintiff are evidence of the best character.
In his testimony, Eichelberger says that Johnston and himself, agreed to submit all of our matters of account to arbitration, and we agreed there, in the presence of the arbitrators, that any balance that was due to me was to be credited to me as a payment for the share which I had purchased in the stock of goods. According to this, Johnston had never agreed, up to this time, .to a payment in his own paper, and it negatives the view that Johnston supposed or consented to Eichelberger’s having such an interest without payment. But from the answer, as well as from the bill and the evidence, we derive no confirmation of this statement of Eichelberger, as we shall presently show.
Johnston testifies that he authorized Jas. Johnston, Anderson and Miller to divide the goods in his store; that his reason for so doing was to let Eichelberger have one-half of the goods, provided he paid for them; that while he does not recollect all the conversations he may have had on the subject, he never has recognized any interest of Eichelberger [253]*253in the goods, nor did he ever intend him to^rave any interest until he paid in money; that he did not and does not now know the state of the accounts between them, and that the division was authorized upon our understanding that the goods were to be paid for -in cash; that there was no understanding that if a balance was in favor of Eichelberger, it was to be allowed him in payment of the goods. After the division I put the goods together, because he refused to pay cash, and wanted to have balances on old accounts allowed. "We proceed to examine this testimony.
James H. Johnston’s permitting Eichelberger to take a part of the goods without payment, when his authority did not extend to a delivery, but only to a division, is not a waiver by Johnston of his right of payment, nor did these acts pass the property to Eichelberger. The proper inference, even if it is established that Johnston consented to his taking the part, is, that Johnston did this with the belief that Eichelberger would pay for the whole when all of the part which Johnston intended to let him have was delivered. Johnston testifies that as soon as he found that Eichelberger was not going to pay, he instructed the clerks to put the goods together, and the clerks say that this was about his language at the time. Lord Ellenhorough, in a similar case, held that the vendor, by such an act as a delivery of a part, did not change his rights or his property in the remainder. 1 Camp., 427.
Submitting all accounts to arbitration, agreeing to an inventory and division of the goods in the store, expressing nothing as to Eichelberger’s paying in cash, and saying expressly that it was not right that Eichelberger should get Ms (Johnston’s) goods at cost, which is about what the testimony of McConnell amounts to, does not establish an agreement upon Johnston’s part to accept any debt to be ascertained by the arbitrators as a payment, nor do these things constitute a waiver of his rights by Johnston. It is true that this witness, after stating what did occur, gives his opinion of [254]*254the matter, and says : “ Prom what was said in my presence by both parties, I was satisfied at the time that the amount that was due to Eichelberger was to be allowed to E. in settlement for that part of the goods which he was to receive after the division.” This is not evidence. The witness no ■doubt believed, as matter of law, that under the original agreement a property passed to Eichelberger. He therefore supposed that E. was entitled to the property without payment ; that credit was extended, and he would very naturally and properly be satisfied that the amount was to be set off.
. The admissions of the bill, which are consistent with the answer’and the testimony of Johnston, to the effect that he always demanded cash for one-half of the goods, are certainly sufficient to establish the fact that Johnston never waived his right to payment in cash.
Eichelberger’s testimony, to the effect that Johnston and himself agreed, in the presence of the arbitrators, that any balance that was due to him was to be credited as a payment on these goods, is not corroborated by the testimony of the arbitrators in his behalf It is in conflict with the allegations in his bill, and is denied by the answer and evidence of the defendant. It is, besides, established by the testimony of Miller, as well as the testimony of Anderson, that Johnston directed the goods to be placed together, and gave as his reason for so doing that he would not allow E. an interest until he came up to the agreement; that E. could not “ ante up ” or pay, &c.
In addition to this, it is true that either Johnston or Eichelberger could have withdrawn their consent to the arbitration at any time. 2 Tidd’s Prac., 823. Upon the revocation of the authority of the arbitrators in this case, this agreement, even if proved, being made in reference to and in view of the arbitration, could not be effective as a general agreement to accept payment in his own paper. This was the case, also, with all agreements made in strict refer[255]*255ence to and in consideration of the submission of all accounts to arbitration. Our conclusion is, that there was no partnership inter se, and the bill should have been dismissed upon the hearing.
•The decree is reversed, and the cause remanded for such proceedings as are conformable to this opinion.