ON MOTION FOR REHEARING.
The plaintiffs in error contend that the court overlooked and failed to decide one of their main • contentions, to the effect that even though the defendants were partners, yet, under the allegations in the 4th count of the petition, the two Johnsons were liable as individuals for furnishing the defective machinery, on account of the use of which the plaintiffs’ property was damaged. In the opinion already filed it was held, following the ruling of this court in the case cited, that the two Johnsons could not be held liable for a tort of their copartner, Pennington, in which they did not participate. The whole theory of the 4th count of the petition is that the damage to the plaintiffs’ property was occasioned by two things: (1) the defective condition of the machinery, and (2) the negligent operation of the machinery by Pennington. It is not claimed that *60either of the Johnsons had anything to do with the management or placing of the machinery. It is sought to hold them liable solely on the ground that they knowingly furnished defective machinery to Pennington,. their copartner. Since the plaintiffs would not have been damaged had it not been for the negligence of Pennington, and since the Johnsons can not be held liable for his negligence, it must be apparent that no cause of action against the Johnsons is set forth in count 4. As has already been pointed out, it has been distinctly held by the Supreme Court that a partner is not such an agent of his copartners as to render them liable for the consequences of his negligence when they themselves did not in any way participate in the negligent act. It is alleged in the 4th count that the Johnsons furnished defective machinery, and therein were negligent, but it plainly appears, from what follows, that this negligence would not have caused the injury but for the subsequent negligent act of their partner, Pennington.
For these reasons the motion for rehearing is denied.