* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 765, n. 85, 86; Partnership, 30Cyc, p. 403, n. 51; p. 415, n. 28. Appellant brought this action in the circuit court of Winston county against appellees, as a partnership, on an account for sawmill supplies, alleged to have been furnished to appellees by appellant. There was a judgment by default against the appellee J.A. Stuart Lumber Company and a verdict and judgment for appellee Philip J. Toomer Lumber Company. From the latter judgment appellant prosecutes this appeal.
At the close of appellant's testimony, on motion of Philip J. Toomer Lumber Company, the evidence was excluded and a verdict directed for Philip J. Toomer Lumber Company. For convenience, we shall refer to *Page 813 the Philip J. Toomer Lumber Company as the appellee, there being no question for decision affecting the other appellee, J.A. Stuart Lumber Company.
In determining the propriety of the action of the court in directing a verdict for the appellee, the evidence for appellant must be treated as establishing every material fact which it tends to prove either directly or by reasonable inference.
The J.A. Stuart Lumber Company was the trade-name under which J.A. Stuart conducted a sawmill business in Winston county. Appellee was a corporation engaged in the sawmill and lumber business, with offices at Hattiesburg and Houston, in this state. A part of its business was to purchase lumber from other sawmills, including the J.A. Stuart Lumber Company. The latter bought mill supplies from the appellant; thereby becoming indebted to appellant in the amount sued for. Appellant brought this action on an account against both J.A. Stuart Lumber Company and appellee, alleging that they constituted a partnership, and that the mill supplies represented by the account were furnished on the credit of both of them carrying on the sawmill business as a partnership. Appellee denied the partnership under oath, as provided by section 1975, Code of 1906 (section 1635, Hemingway's Code). Under that statute it therefore devolved upon the appellant, in order to establish liability for the account against the appellee, to prove the partnership. The evidence which appellant claimed tended to prove the partnership is substantially as follows:
Appellee bought a sawmill for the J.A. Stuart Lumber Company and largely financed its operation, including the furnishing of money in part, at least, with which to meet its pay rolls. Appellee also bought either all or a considerable portion of the output of the sawmill business of J.A. Stuart Lumber Company. The testimony most strongly relied upon by appellant as tending to show the partnership of the two concerns was that of the witness Lashley, who testified that on a certain occasion *Page 814 he had a talk with Mr. Toomer, appellee's managing officer, who stated:
"At the start we put up the money and bought the mills, and the teams and the timber, and sold Mr. Stuart a half interest in the business, and we were to go fifty-fifty, and we ran that way awhile, and it wasn't giving satisfaction, and I took the business over and put Mr. Stuart on a salary."
The witness was asked, in that connection, whom Mr. Toomer had reference to in the statement made by him. In reply, the witness stated: "I figured he meant the Toomer Lumber Company." The testimony, except that of the witness Lashley was entirely consistent with the theory of nonpartnership between appellee and J.A. Stuart Lumber Company. The evidence that the appellee financed the sawmill business of J.A. Stuart Lumber Company did not tend, in the remotest degree, to establish a partnership between the two concerns. There was no evidence in the present case that appellee and J.A. Stuart Lumber Company held themselves out as partners and traded as such either before or during the period of the making of the account sued on. It is true that the testimony of the witness Lashley tended to show that a partnership at some period existed between them. However, we think his testimony was too vague and indefinite to meet the burden imposed on appellant by this statute. The witness Lashley did not state when the conversation between himself and Toomer, the managing officer of appellee, took place, or whether Toomer said the partnership existed before, during, or after the account sued on was incurred. So far as the testimony goes to show, the partnership referried to by Toomer in that conversation might have existed at an entirely different time from that covered by the period in which the account was incurred. It might have been long subsequent thereto. Where a person, under the statute, is sued as a partner and denies the partnership under oath, it devolves on the creditor seeking to hold the alleged partnership *Page 815 liable to show by substantial evidence that, at the time the indebtedness sued on was incurred, the parties sought to be held as partners were actually such, or holding themselves out to the business world as such. We think the evidence in this case was too vague and indefinite to meet the burden imposed by the statute; that, under the statute, the testimony failed to raise an issue for the jury.
Affirmed.