I concur in the opinion of Mr. Justice Houghton except in- so far as he holds that the declarations of Judson that the appellants were his -partners in the purchase of the stock referred to were admissible-in evidence. The fact that. Judson employed' the plaintiffs to purchase the stock of the International Power Company, upon which á loss Was sustained, and to charge the same to the account of. “ Cyrus Field Judson, Special,” and that they made such purchase and sustained the loss claimed, was not disputed at the trial. The real anj substantially the only question litigated was whether the appellants were partners of Judson in such transaction, and they were entitled,to have this issue determined upon competent evidence.
. Mr. Justice Houghton in his opinion concedes that the declarations of Judson would be incompetent to determine this issue, but he says. prima facie evidence having been given- that such partnership -existed, then such declarations became admissible; in other words,, because Judson testified that the appellants were his partners, that *547thereupon his declarations, not made in the- presence or with the knowledge of the alleged partners or either of them, became admissible. But admissible for what purpose? Obviously, either to corroborate the testimony of Jndson that the partnership existed or else to establish the' partnership. It is unnecessary to cite .authorities to establish the proposition that the testimony of a witness cannot be corroborated by his unsworn declarations, made without the knowledge or consent of the person against whom they are sought to be used. This.is elementary. 'That the declarations, of ' one party that another is his partner is no evidence whatever, except as against the one making the same, to establish such partnership where such declarations are not made in the presence or with the knowledge of the alleged partner, is established by numerous authorities,'among which the following may be read with interest: McPherson v. Rathbone (7 Wend. 216); Thorn v. Smith (21 id. 365); Whitney v. Ferris (10 Johns. 66); Kirby v. Hewitt (26 Barb. 607); Whitney v. Wardell (59 Hun, 95); Haney v. Walker (Id. 114); Uhler v. Browning (28 N. J. L. 79) ; Degan v. Singer (41 Ill. 28); Gardner v. Northwestern Mfg. Co. (52 id. 367); Bishop v. Georgeson (60 id. 484); Robins v. Warde (111 Mass. 244); McNeilans Estate (167 Penn. St. 473); Armstrong v. Potter (103 Mich. 409); Bundy v. Bruce (61 Vt. 619); Cowan v. Kinney (33 Ohio St. 422); Butte Hardware Co. v. Wallace (59 Conn. 336); Dutton v. Woodman (9 Cush. 255), and in addition see Vanderhurst, Sanborn & Co. v. De Witt (20 L. R. A. 595), and cases cited in note.
The rule which excludes such declarations, and the reason upon which it is based, is well stated by Bigelow, J., in Dutton v. Woodman (supra), as follows: “ The authority of Thurston and of I. F. Woodman to bind E. W. Woodman by their statements and declarations, depended entirely upon the existence of the copartnership. Until that was proved, E. W. Woodman was not shown to have had any connection with either of them ; and as-that was the very point in controversy before the jury, to be determined by their verdict, evidence which could be admissible only upon the assumption of the existence of the copartnership was clearly incompetent when offered to prove the fact upon which its competency depended.”'
Here, as already indicated, substantially the only issue was *548■ whether Hoadley and Letter were partners of Judson in the transaction referred to in the complaint. Judson’s declarations to establish that fact were incompetent and should have been excluded. Objection was seasonably made to their admission in evidence and at the close of the plaintiff’s case an appropriate motion was made to strike out such evidence, which was denied and an exception taken. The case was sent to the jury with instructions that they must determine whether such partnership existed from all the evidence in the case. In admitting this class of evidence the tria} court erred, and for such error there must also be a new trial.
Clarke, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellants to abide event.' Order filed.