(30) This was an action for deceit and false warranty in the sale of a mule. The plaintiffs declared as partners acting and trading under the style and firm of Jacob Little Company. In support of their declaration they showed that a partnership existed between the plaintiffs before, at the time of, and since the commencement of this action — both in farming and in the tannery business. It was also shown that the trade for the mule in question was made by Jacob S. Little alone, and that nothing was said of the purchase being made for the firm. There was no evidence on the trial that the mule had ever been used on the joint farm or in the tannery of the plaintiffs. Upon this testimony the counsel for the defendant moved to nonsuit the plaintiffs, upon the ground that there was no evidence of any joint interest upon the part of the plaintiffs in the purchase of the mule. But, by consent, the court reserved the point, and submitted the other testimony touching the deceit and false warranty, with the understanding that if the jury should find a verdict for the plaintiffs, the court, if of opinion with the defendant upon the point reserved, might set the verdict aside and enter a nonsuit.
The jury having found a verdict for the plaintiffs, the court, upon consideration, being of opinion that there was no evidence that the mule was purchased for the firm, set the verdict aside and directed a nonsuit to be entered. From this judgment the plaintiffs appealed. We do not concur with his Honor in the view taken by him in respect to the ownership of the mule. *Page 45
The fact that Jacob Little was in partnership with John "in farming and in the tannery business," in the absence of any evidence that Jacob carried on any separate business of his own in which mules and horses were needed, was not only some evidence to be left to the (31) jury that the mule was purchased for the firm, but, as it seems to us, was plenary evidence of the fact. It was a matter of indifference to the defendant whether the mule was purchased for the firm or for Jacob Little alone; and when the existence of the firm was established, the act of issuing the writ in the name of the persons composing the firm, is very similar to the act of sending the mule to the farm or tannery, and raised a presumption that the mule was bought for the firm, so as to put upon the defendant — if he wished to defeat the action on a ground which did not affect its results — the onus of proving that the mule was in fact bought for Jacob Little alone.
The nonsuit will be set aside, and a judgment entered upon the verdict for the plaintiffs, in pursuance of the agreement under which the question was reserved.
PER CURIAM. Judgment reversed.