Hinman, J.
The defendants raise the preliminary question, in respect to the motion for a new trial on the ground that the verdict is against the evidence in the case, whether the court will consider the motion at all, for the reason that the judge of the superior court has not certified that he is of opinion that a new trial ought to be granted, or that the verdict was, in his opinion, against the evidence in the case. It is true that by the statute, (Rev. Stat., tit. 1, § 155,) the superior court is only authorized to make a statement of the evidence, and report the same to the supreme court of errors for that court to act upon in granting or refusing a new trial, when it shall be of opinion that the verdict of the jury is against the evidence given in the cause. The superior court is also to allow or grant a rule to show cause why a new trial should not be granted on this ground at its discretion, if it is of this [129]*129opinion. There is no ambiguity in the statute, and we suppose, of course, that a rule to show cause why a new trial should not be granted is never allowed unless the superior court is of opinion that the verdict is against the evidence in the cause. The practice of allowing, as a matter of course, cases to go up for review on this ground, would be attended with much vexation in increasing the amount of litigation, besides the practical difficulty which is always felt in reviewing a question of fact upon a mere statement of the evidence on paper, without an opportunity to judge of the credit due to witnesses from their appearánce upon the stand. While, therefore, we think the statute very properly discriminates between motions of this sort and motions on which questions of law only are raised, making the allowance of the former discretionary, and only to be granted where the judge is of opinion that the verdict is against the evidence, while in the latter ease he has no discretion, but is bound to allow them, yet we have never understood the practice to require a formal certificate of the opinion of the court in the former case, as preliminary to the bringing up of the evidence for review. We believe the practice on this point to have been various. We are aware that some judges have, out of abundant caution, in reference to the language of the statute, always made such a certificate in the motions allowed by them to go up on this ground ; but this has not been the uniform practice. And until the practice becomes so uniform as that all may be supposed to be acquainted with it, or the court shall see fit to make a rale requiring it to be done, we think it might operate as a surprise upon a party to hold that the statute required it to be done. We feel disposed therefore, in this case, to look upon the granting of the rule to show cause why a new trial should not be granted, as sufficient evidence that the judge was of opinion that the verdict is against the evidence, presuming that he would not have allowed the motion on any other ground.
With regard to the motion for a new trial on the ground that the judge mistook the law in charging the jury, or rather, that he misconstrued the instrument of the 17th of April, [130]*1301855, executed by Cowdrey and Chalker, and under which the partnership was claimed to exist:—-That instrument states that it was the intention of the parties to form a co-partnership, which was to continue for the term of three years from the first day of May, 1855, and although it states that the parties were then, that is, on the 17th of April, the proprietors of stock in equal proportions, a schedule of which is referred to as contained in the stock book, and the articles provide that they shall continue to be the owners of the same in the same proportions, still, we think the judge was correct in considering the articles as providing for the co-partnership to be commenced on the 1st of May. They had, as preliminary to the commencement of their business, purchased or procured a stock of goods. But they could do this, as well as purchase books, and rent a store where the business was to be carried on, without actually entering into or commencing any partnership dealings. And when the articles speak of the partnership continuing three years from the first of May, 1855, we think it fair to infer that it was not to commence till that time, and that the stock which had been procured belonged to them as joint owners or tenants in common and not as partners. If we are right in this, that the partnership did not in fact commence until the first of May, it is quite clear that until that time it was in the power of either party to refuse to go on with it. It was like any other executory contract, which either party may refuse to carry out; and the remedy for such refusal would be an action for such damages as the party may have suffered in consequence of it. But in regard to third persons there would be no partnership, notwithstanding the articles. This, if we are correct, renders it unnecessary to examine a more difficult question raised in the case, as to whether it was competent for Cowdrey, after the commencement of the co-partnership, to dissolve it at his pleasure, and without reference to the causes for which it is provided in the articles that either party may dissolve the concern. We therefore express no opinion on that point.
The remaining question is, whether the verdict is contrary [131]*131to the evidence in the case. And this depends principally upon whether Mr. Cowdrey did, in point of fact, previous to the first of May, 1855, give notice to Chalker that he should refuse to go on with the partnership under the articles, and whether he did refuse to so go on, as a partner, and was not concerned or connected with him in the purchases thereafter made apparently on the partnership account. And here, in this part of the case, it must be admitted that the question must rest very much upon the testimony of Mr. Cowdrey and the witnesses in his behalf, construed in reference to such conceded or indisputable facts as appear in the case, because the jury had a right to weigh the whole evidence, and it was their duty to do so; and it is not competent for the court to say that they came to a wrong conclusion because they believed one witness or a class of witnesses on behalf of the defendant, and disbelieved the witnesses on the part of the plaintiffs. So far then as the testimony on behalf of Mr. Cowdrey relates to facts stated by his witnesses, we concede that they must be considered as proved to the satisfaction of the jury and therefore true, but so far as these witnesses speak of inferences, either of fact or of law, which they draw from facts or circumstances proved, or appearing in the case, or out of it, they are of course open to examination. It must therefore be admitted that Mr. Cowdrey is correct in stating that before the first of May, 1855, he told Mr. Chalker that the writing between them (meaning the articles of co-partnership) would not be carried out, and was of no effect; and had he acted in accordance with this notice, we cannot doubt that the partnership never would have existed. But Mr. Cowdrey states that at this time he was somewhat excited. He had learned that Chalker, with whom he had agreed to form the co-partnership, owed debts which had not been disclosed to him. He charged him with having deceived him. He thought he equivocated in respect to his debts, though he admitted that he owed one Moser and others, but said that by the aid of his friends he could satisfy them. Now it was in this conversation, and under the excitement arising from it, and from the fact which it discloses of [132]*132the indebtedness of Chalker, that Mr.
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Hinman, J.
The defendants raise the preliminary question, in respect to the motion for a new trial on the ground that the verdict is against the evidence in the case, whether the court will consider the motion at all, for the reason that the judge of the superior court has not certified that he is of opinion that a new trial ought to be granted, or that the verdict was, in his opinion, against the evidence in the case. It is true that by the statute, (Rev. Stat., tit. 1, § 155,) the superior court is only authorized to make a statement of the evidence, and report the same to the supreme court of errors for that court to act upon in granting or refusing a new trial, when it shall be of opinion that the verdict of the jury is against the evidence given in the cause. The superior court is also to allow or grant a rule to show cause why a new trial should not be granted on this ground at its discretion, if it is of this [129]*129opinion. There is no ambiguity in the statute, and we suppose, of course, that a rule to show cause why a new trial should not be granted is never allowed unless the superior court is of opinion that the verdict is against the evidence in the cause. The practice of allowing, as a matter of course, cases to go up for review on this ground, would be attended with much vexation in increasing the amount of litigation, besides the practical difficulty which is always felt in reviewing a question of fact upon a mere statement of the evidence on paper, without an opportunity to judge of the credit due to witnesses from their appearánce upon the stand. While, therefore, we think the statute very properly discriminates between motions of this sort and motions on which questions of law only are raised, making the allowance of the former discretionary, and only to be granted where the judge is of opinion that the verdict is against the evidence, while in the latter ease he has no discretion, but is bound to allow them, yet we have never understood the practice to require a formal certificate of the opinion of the court in the former case, as preliminary to the bringing up of the evidence for review. We believe the practice on this point to have been various. We are aware that some judges have, out of abundant caution, in reference to the language of the statute, always made such a certificate in the motions allowed by them to go up on this ground ; but this has not been the uniform practice. And until the practice becomes so uniform as that all may be supposed to be acquainted with it, or the court shall see fit to make a rale requiring it to be done, we think it might operate as a surprise upon a party to hold that the statute required it to be done. We feel disposed therefore, in this case, to look upon the granting of the rule to show cause why a new trial should not be granted, as sufficient evidence that the judge was of opinion that the verdict is against the evidence, presuming that he would not have allowed the motion on any other ground.
With regard to the motion for a new trial on the ground that the judge mistook the law in charging the jury, or rather, that he misconstrued the instrument of the 17th of April, [130]*1301855, executed by Cowdrey and Chalker, and under which the partnership was claimed to exist:—-That instrument states that it was the intention of the parties to form a co-partnership, which was to continue for the term of three years from the first day of May, 1855, and although it states that the parties were then, that is, on the 17th of April, the proprietors of stock in equal proportions, a schedule of which is referred to as contained in the stock book, and the articles provide that they shall continue to be the owners of the same in the same proportions, still, we think the judge was correct in considering the articles as providing for the co-partnership to be commenced on the 1st of May. They had, as preliminary to the commencement of their business, purchased or procured a stock of goods. But they could do this, as well as purchase books, and rent a store where the business was to be carried on, without actually entering into or commencing any partnership dealings. And when the articles speak of the partnership continuing three years from the first of May, 1855, we think it fair to infer that it was not to commence till that time, and that the stock which had been procured belonged to them as joint owners or tenants in common and not as partners. If we are right in this, that the partnership did not in fact commence until the first of May, it is quite clear that until that time it was in the power of either party to refuse to go on with it. It was like any other executory contract, which either party may refuse to carry out; and the remedy for such refusal would be an action for such damages as the party may have suffered in consequence of it. But in regard to third persons there would be no partnership, notwithstanding the articles. This, if we are correct, renders it unnecessary to examine a more difficult question raised in the case, as to whether it was competent for Cowdrey, after the commencement of the co-partnership, to dissolve it at his pleasure, and without reference to the causes for which it is provided in the articles that either party may dissolve the concern. We therefore express no opinion on that point.
The remaining question is, whether the verdict is contrary [131]*131to the evidence in the case. And this depends principally upon whether Mr. Cowdrey did, in point of fact, previous to the first of May, 1855, give notice to Chalker that he should refuse to go on with the partnership under the articles, and whether he did refuse to so go on, as a partner, and was not concerned or connected with him in the purchases thereafter made apparently on the partnership account. And here, in this part of the case, it must be admitted that the question must rest very much upon the testimony of Mr. Cowdrey and the witnesses in his behalf, construed in reference to such conceded or indisputable facts as appear in the case, because the jury had a right to weigh the whole evidence, and it was their duty to do so; and it is not competent for the court to say that they came to a wrong conclusion because they believed one witness or a class of witnesses on behalf of the defendant, and disbelieved the witnesses on the part of the plaintiffs. So far then as the testimony on behalf of Mr. Cowdrey relates to facts stated by his witnesses, we concede that they must be considered as proved to the satisfaction of the jury and therefore true, but so far as these witnesses speak of inferences, either of fact or of law, which they draw from facts or circumstances proved, or appearing in the case, or out of it, they are of course open to examination. It must therefore be admitted that Mr. Cowdrey is correct in stating that before the first of May, 1855, he told Mr. Chalker that the writing between them (meaning the articles of co-partnership) would not be carried out, and was of no effect; and had he acted in accordance with this notice, we cannot doubt that the partnership never would have existed. But Mr. Cowdrey states that at this time he was somewhat excited. He had learned that Chalker, with whom he had agreed to form the co-partnership, owed debts which had not been disclosed to him. He charged him with having deceived him. He thought he equivocated in respect to his debts, though he admitted that he owed one Moser and others, but said that by the aid of his friends he could satisfy them. Now it was in this conversation, and under the excitement arising from it, and from the fact which it discloses of [132]*132the indebtedness of Chalker, that Mr. Cowdrey told him the writing was of no effect and would not be carried out. These circumstances lead us to doubt whether there was, even at this time, any settled design to'refuse to enter into the co-partnership. Had there been, it would seem that he would hardly have remained satisfied with this naked declaration. Surely, he would have taken some measures to obtain his share of the capital stock, without leaving it in the custody and control of the individual who had thus deceived him. Besides, he at this time told Chalker that he would shut up the store with an officer if those debts were not paid. Considering then that he appears at this time to have had it in his power to thus shut up the store, and considering the circumstances which will presently be alluded to, we infer that although he then gave notice of his intention not to go on with'the business in the manner in which he mentions, yet on the agreement of Chalker to settle these debts, which were the cause of his dissatisfaction, he did not intend really to carry his intimation into effect. Again, although it is, we think, true that in a strict technical sense the partnership had not commenced under the articles, because they provide for its commencement on the first of May, still, as the parties provided themselves with a stock of goods, and with a store where the business was to be carried on, and with books of account, and, so far as we know, with all the requisites for the commencement of the business, these circumstances are to be taken into consideration in arriving at the meaning of Cowdrey when he declared to Chalker that the writing would not be carried out. Under these circumstances, mere' neglect to take any measures to secure to himself his share of the property, but on the contrary suffering Chalker to dispose of it at the store just as it was contemplated in the articles that the property should be disposed of under the partnership, is a strong circumstance indicating that the language used to Chalker was either an angry expression of his excited feelings at that time, which the parties did not consider as intended to be carried out, or that, if he had any such intention at the time, he changed it [133]*133before the first of May, on the agreement of Chalker to settle his outstanding individual debts. But Mr. Cowdrey did not rest with merely doing nothing. He states that both he and Chalker immediately commenced making efforts to sell; and it appears that he was often at the store after the first of May, making entries in the books, taking an inventory, and, in various ways, acting in a manner which was very proper if he was a partner, but which we think was wholly inconsistent with the relation, which he claims at this time, of being a mere creditor of Chalker. No doubt he was dissatisfied with the fact of Chalker’s indebtedness, and probably intended to get back the value of the property advanced in order to purchase the stock of goods, and perhaps he intended after accomplishing this to dissolve his connexion with him; but we think he intended to make use, and did make use of the power which the articles gave him as a partner to effect this object, rather than the power which he had as a creditor. He undoubtedly considers himself to have been a creditor of Chalker, and as the party who had advanced the greatest share of the capital stock, he, in a sense, was so. But we think he was more than a mere creditor and that it is his interest to be treated as a creditor rather than as a partner, which, after this length of time, has induced him so to consider himself. Again, his giving a letter of credit to Chalker to get goods in New York, to any amount not exceeding at any one time a thousand dollars, seems to be inconsistent with the claim that, in consequence of Chalker’s having deceived him in respect to his debts, he determined to dissolve the co-partnership. This letter is dated the 11th of May, 1855, and must, therefore, have been very soon after the conversation in which he informed him he should not carry out the writing between them.
Now, when we consider that the articles of co-partnership, together with the parol testimony on the part of the plaintiffs, make out a very clear and satisfactory case against Mr. Cowdrey as a partner with Chalker, we do not think this case, thus made out, is answered by the testimony of Mr. Cowdrey that he was not a partner. We look upon this [134]*134rather as the expression of his opinion upon the facts as he views them, and upon the law as applicable to those facts, than as testimony to the fact that no partnership existed between them. And much of the testimony of Mr. Cowdrey himself, some of which has been alluded to, we consider as going rather to establish the claim made by the plaintiffs, than' the claim made by himself. And we think the jury must have been misled in relying too much upon the testimony of Mr. Cowdrey as to mere matters of opinion, which led them to overlook the strong facts and circumstances proved in the case, and which ought to have led them to form a different opinion from that expressed by him.
We therefore come to the conclusion that the ease should be submitted to another jury.
In this opinion the other judges concurred.
New trial granted.