(dissenting). — I am unable to agree with the conclusion reached by the majority in this case. It seems to me that the testimony was overwhelmingly to the effect that McGoldrick was a partner with Mahoney in the undertaking business. It must be borne in mind that the appellant here was not charged with partnership by holding out, but was charged as an actual partner; and it seems to me that the instruction of the court, which is so strenuously objected to by appellant and which this court holds to be error, in view of the testimony in this case, is absolutely harmless, even if it did not correctly state the law, which I think it did. For certainly, if the jury found from the evidence that appellant admitted that there was a partnership between him and the deceased Mahoney, and it further appeared that he was interested with him in the undertaking business during the time set forth in the complaint, both so far as the good will of such business went, and the stock of goods used in such business, then undoubtedly the jury would have been justified in coming to the conclusion, and in fact could not have come to any other conclusion, than that appellant was á partner in the business. It is not disputed that appellant was a partner in the first business, and he was not more actively known in that than in the latter business. His admitted statements to others, his solicitation for a continuance of the patronage of business, and even his own statements on the witness stand, go conclusively to show to my mind that he was an actual partner with Ma-honey. He testifies that he went into partnership for the purpose of being secured for payments for whatever he had endorsed, but it was none the less a partnership because this was the reason which urged him to form it. The jury were justified in concluding, it seems to me, even from *235the testimony of the appellant himself, taking into consideration both the direct and cross examination, that he was an actual partner in the business, and that he disclaimed partnership simply when he found that the business was insolvent.
If there were any technical errors by the court concerning the instructions, either in giving or refusing to give, I think under the undisputed testimony in the case that they were harmless. The judgment should therefore be affirmed.
Scott, J., concurs.