The opinion of the court was delivered, by
Thompson, C. J.1. The ruling of the learned judge as presented by the first bill of exceptions and first assignment of error, was all right. The plaintiff claimed against the defendants as partners. This was not to be established by showing fraud and concealment as between them, but by such evidence only as should tend to show a community of interest in the business carried on ostensibly, or, if not, impliedly, by sharing in the profits and losses. Whether the partners were fair or fraudulent in their intentions and acts, it matters not to the plaintiff, unless he could show this as the state of the facts. The court discriminated properly as to what part *197of this offer was admissible and what should be rejected. This error is not sustained.
2 and 8. The ruling upon the second bill of exceptions, like the first, was all right. It mattered not what the defendant Moore’s knowledge of his rights under the assigned lease were as to his landlords. Whatever might have been his knowledge on that subject, it did not make him a partner, unless the lease, together with his acts under it, made him so. Neither this nor the third exception is sustained.
4 and 5. These assignments of error on their face make no case against the ruling of the court after the offer of testimony. Like counts in a narr. they should be self-sustaining — should in themselves primá facie disclose a case of error. This they do not do. In what was the plaintiff injured by the rejection of evidence as to the precise date of a transaction, not connected with the matters in controversy, but to show facts from which it might possibly be inferred that the defendants were partners and had been for months before. Buying goods and materials jointly during the alleged period of the partnership, was some evidence of the fact. The precise date was of no consequence. Indeed, all that was material on the point embraced by the proposed testimony was actually admitted, and was before the jury. What the declarations of Oscar F. Moore were, that were refused by the court, does not appear in the bill of exceptions. How can we say there is error in what does not appear ? The proposed declarations should have been spread on the face of the exception. These errors are not sustained.
6. We think the orders drawn by J. H. Bracken, on J. H. Bracken & Co. in Philadelphia, and accepted by Oscar F. Moore, and the goods furnished thereon in accordance with the acceptance, were evidence on the question of partnership. Oscar F. Moore was William D. Moore’s agent and attorney in fact in Pennsylvania, as testified to by the latter, and took charge of the interests of the latter about the colliery and at.Philadelphia, from and after the assignment to him (William D. Moore) in February 1867. It was also in evidence that William D. Moore lived in Washington City, and had no other known interests in this Commonwealth, excepting in the Charter Oak Colliery. Now whatever the agent did within the scope of his authority was in law the act of his principal, and if the effect was to establish a partnership, it was evidence. This exception is sustained.
7. The seventh offer was properly rejected in the state of the facts of the case trying.
8. It will be apparent when we come to speak of the 9th and 10th assignments of error, that the learned court erred in rejecting this offer. It consisted of a number of assignments by the legal plaintiff to Heebner & Brother. The validity of the claims assigned was not in dispute. The only question being whether Bracken & *198Moore, as partners, were liable for them, or J. H. Bracken individually. In our view of the case they should have been admitted and submitted to the jury upon the question of partnership.
9 and 10. We think these errors are sustained. It seems to us theye was evidence, not a scintilla merely, but of substance, in the cause of a partnership between Bracken & Moore from and after the assignment of the one-third interest in the colliery in February 1867, together with the one-third of the personal property necessary to the operation of the colliery, until the purchase of the whole by Moore. Certainly the most reasonable inference as regards the personal property would be, that it was bought to be used in connection with the colliery for the benefit of the purchaser of an interest in title. It was so used, and an agent was appointed to see to the interests of its owner; and it was of course used in connection with the owner of the remaining two-thirds interest. Without any explanation of this, the inference would arise that there was a partnership. It would be a natural presumption certainly, and we think a legal presumption as well. Then there was evidence of negotiations and declarations about rolls for the colliery by Moore, and about the purchase and payment for oil, by the attorney in fact of the latter. The appointment of an agent by Moore to take charge of his interests about the colliery, and proof to the effect that he had no other interests in Pennsylvania, and the draft of orders by J. H. Bracken on J. II. Bracken & Co. in Philadelphia ; all these were circumstances proper to be submitted to the jury on the question of partnership, but were withheld as altogether insufficient to raise a legal inference of partnership. The learned judge mistook his province in so holding and directing a verdict for defendants. The jury should have been called upon in face of all the evidence in the case, to say how that was.
For these reasons the judgment is reversed, and venire de novo awarded.