delivered the opinion of the court, May 5th 1879.
This was an action on a parol award of arbitrators. The submission was by parol, but whether made by one or both the copartners was a question in controversy.
The general rule in England and in many of our sister states, is that one partner cannot bind his copartner by submission to arbitration. In Pennsylvania it is held that he may so bind his copartner, by agreement not under seal, in any partnership matter. The question was carefully considered in Taylor et al. v. Coryell et al., 12 S. & R. 243. In that case the evidence did not show either consent or dissent on the part of the copartner. The able opinion of Mr. Justice Duncan well states many of the practical inconveniences that would result from a denial of that power. It cannot bo done by instrument under seal because the authority to execute a deed must be by deed, That, however, applies to the manner of binding a copartner, and not to the question of implied agency. When the submission is confined to cases for settling and determining claims arising in the partnership business, it is difficult to assign any substantial reason for denying the power of one partner in good faith, to bind his copartner, by a parol submission. The same doctrine is held in Southard v. Steele, 3 Monroe R. 433. The incidental dictum of Mr. Chief Justice Gibson in Harper v. Fox, 7 W. & S. 143, in no wise impairs the authority of Taylor v. Coryell.
The subject-matter of submission from which the present action arises, was to determine the sum justly due from the plaintiffs in error, fo the defendant for their use of a saw-mill, in which he owned the undivided half. If they had used the mill in manufacturing their lumber, it was clearly within the scope of the partnership business for one partner to ascertain the sum due and pay the same. Failing to agree with the owner of the mill, one partner had the right to submit the question by parol to arbitrators to decide, and the firm was bound by the award made in pursuance of the submission. A parol award made on a parol submission is a valid award: McManus v. McCulloch, 6 Watts 357.
*457It is contended that conceding the power, qf one partner to hind his copartner by a submission, yet the evidence of an agreement in this case was insufficient to leave to the jury. We think the evidence of the defendant in error was amply, sufficient to justify the court in submitting the question to the jury. ■ He testified in substance that he leased his half of the mill to James and Calvin Gay; that he was unable to settle with them as to the ‘sum he was entitled to receive therefor; that he and they submitted it to three men named; that at first it was also agreed that the arbitrators should determine the differences between him and' James Gay; but while the parties were present before the arbitrators, talking the matters over, the submission was so changed, as to leave to them to decide what he should have for the use of the mill as between him and James and Calvin Gay. After stating where the arbitrators met, he proceeded to say, “ They heard my statements or allegations as to the use of the mill, and Mr. Gay’s accounts and statements as to the use of the mill by them, and announced the award, verbally, as far as I know. I did not see any writing present. They awarded me for the use of the mill from' these parties, $1040 and some cents — fifty-nine cents, I think.” The fact that some other evidence was in conflict with this, or threw doubt on the correctness of Waltman’s evidence, was insufficient to withdraw the case from the jury. The law requires no particular form to establish a valid submission. When it is by parol, the fact must be established to the satisfaction of a jury by a preponderance of testimony: McManus v. McCulloch, supra. The learned judge said'to the jury that they must “ depend entirely .on the evidence of the witnesses in making up your verdict. That is, however, sufficient, if the evidence is sufficiently clear to enable you to satisfy your minds that there was submission, what was submitted, and what was the award of the arbitrators.” In view of the manner in which the case was tried and went to the jury, the plaintiff has no just cause of complaint with this direction.
The remaining question relates to the proof of partnership. The rule of court declares that in actions by or against partners, it is not necessary on the trial to- prove -the partnership; but it shall be taken to be admitted as alleged on the record, unless one or more of the defendants shall make and file an affidavit denying the existence of the partnership as alleged. In this case Calvin Gay filed an affidavit denying that he was a partner, and also pleaded that he was not a partner in the case with James Gay. After the jury was sworn and the- plaintiff below was proceeding to give evidence to establish the partnership, the counsel for the defendant below asked leave to withdraw the plea of no partnership, which the court permitted to be doné; but at the same time stated in the hearing of their counsel that this must be regarded as an admission of the partnership as fully as .if no affidavit had been *458filed, and thereupon excluded the plaintiff below from giving further testimony of that fact. To this ruling of the court the counsel for plaintiff' in error took no exception and made no objection. They assented to it, thereby. influencing the subsequent action of the court, and of the opposite party. Nor is the effect of it changed by the fact that the notes of the stenographer show that the counsel for defendants below then remarked, “Our affidavit does not deny the partnership; but only the partnership as to this transaction.” The existence of the partnership had been put at issue only as to the transaction in question. It was to that issue only, that the affidavit and plea applied. Having been withdrawn under the circumstances stated, the court committed no error in saying to the jury in the charge, “ As the case now stands, the existence of the partnership in relation to the subject-matter of the action must be regarded as admitted.”
We discover no error in the record.
Judgment affirmed.