The opinion of the Court was delivered by
Kennedy J.—• The first error, which is a bill of exception to the opinion of the court below, rejecting the bank-book of the firm, offered as evidence, to show that the funds of the firm were exhausted, was abandoned.
The second error, however, is relied on. It is also a bill of exception to the opinion of the court,- -rejecting the statement of an account, in the handwriting of the defendant, between the firm of Yohe, Barnet & Co., and Yohe and Barnet, showing a balance to be due by the former firm to the latter, of $1938.64, which is deducted from the sum of $2606.34, stated to be due to the plaintiff, and showing also according to a further statement there made a loss of $725.73. Now seeing this action has been brought to recover from the defendant, contribution to a loss, which the plaintiff alleges has accrued in carrying on their business as copartners in trade, and has fallen entirely upon him, it would rather seem that this statement, which was offered in evidence by the plaintiff, had some relation to the business in which it is alleged the loss has accrued, and might very possibly therefore have some bearing and influence in determining the issue between the parties; and being a statement made by the defendant himself in his own handwriting, it is reasonable to presume, if it be against his interest, that it. is true; and, therefore, we think it ought to have been received in evidence, so that it might have gone to the jury for what it should appear to have been worth, after all the evidence on both sides was heard.
The third error, which is likewise a bill of exceptions to evidence, is also insisted on. The evidence, mentioned in this bill was offered by the defendant. It consisted of a statement in writing made by the plaintiff, admitting his indebtedness, without stating to whom, for cash received at-various times, as also his liability for various items on account of other persons therein set forth. It was objected to by the plaintiff, but received by the court. This paper being in the possession of the defendant, and produced by him, raised the presumption that it was delivered *88to him by the plaintiff for the purpose of showing how their matters of account stood between them, and therefore was admissible as evidence to go to the jury, to prove the indebtedness of the plaintiff to the defendant, unless the tendency of it, in this respect, was repelled or explained away by other-evidence.
The fourth error is likewise a bill of exception to the opinion of the court, admitting evidence, offered by the defendant, but objected to by the plaintiff. It was an account charged by the defendant himself, in his own private book, of cash paid for the firm, amounting to #778.83, and of credits given, for #755.48. It was first proved, however, that when this cause was on trial previously before arbitrators, this same account was produced by the defendant, and given in evidence to the arbitrators by the consent of the plaintiff, who said at the time, he did not know whether the charges contained in it were right or not, but he would not object to it. Although what was said by the plaintiff in regard to the charges contained in this account, can scarcely be said to be a full admission on his part of their correctness, yet it was, perhaps, right to let the matter go to the jury, who might judge of the plaintiff’s motive for letting the account go in evidence to the arbitrators. They might possibly think that he suffered it to go to the arbitrators, because he thought there was nothing wrong in it; especially was it right to receive it in evidence, as the plaintiff had no reason for objecting to its going to the jury, that was not equally well known to him when he permitted it to go to the arbitrators.
The fifth error is, that the court erred in charging the jury; first, by assuming the fact, that the defendant, by the partnership . agreement, was not bound to furnish money as his portion of the capital, but that it was to consist of labour, to be performed by him in transacting the business of the partnership, in the application of his' skill and experience in such business, and in lending his credit to it, so far as it might be. requisite to promote the interest of the partnership. It is certainly true,’ that the memorandum in writing, read to the jury as evidence of the partnership agreement, showing, as it was thought, the terms and conditions of it, does not mention or show what the defendant was to furnish or supply, as capital, on his part, to the partnership. For aught that appears therein, it may have been money, or labour, skill and credit. . This memorandum is in the following words: “ Samuel Yohe, David Barnet, and Theodore R. Sitgreaves, have agreed to become copartners in the grocery, liquor, and wine business, to commence from the 14th day of March 1833, and to continue for and during the full term of two years and six months, under the firm of Yohe, Barnet & Co. David Barnet, and Theodore R. Sitgreaves, to furnish #6000, that is to say, David Barnet #3000, and Theodore R. Sitgreaves #3000. . The profits and losses to be divided equally among the three copartners, Samuel Yohe, *89David Barnet, and Theodore R. Sitgreaves, share and share alike. The capital to be furnished on the 14th day of March 1833.” This memorandum was not signed by the parties or any of them, but was in the handwriting of Samuel Yohe, the defendant, and entered in the day-book of the firm of Yohe, Barnet & Co. It is evident that this memorandum, as .an agreement, is imperfect, because it does not show what the defendant had done, or was to do, for and on account of which he was to become entitled to one-third of the profits which should be made. No consideration is mentioned on his part for such an advantage, unless, indeed, it be, that he should contribute in money one-third of any loss or losses, that should happen to accrue in carrying on the business.- But this consideration alone is so grossly inadequate, that it is incredible it should have been the only one within the contemplation of the parties. There must therefore have been a further consideration, which does not appear on the face of the written memorandum, but may be come at by a careful consideration of the oral testimony. What it was, however, was a question of fact, which ought not to have been assumed by the court, but ought to have been submitted to the jury to be decided by them. And as it appeared from the evidence, that the defendant attended to purchasing goods for the firm, and occasionally to the selling of them, in the absence of one or both of the other partners; and as it does not appear that any complaint was ever made by the others that he had not furnished money as his proportion of the capital, it is highly probable that the jury would have come to the conclusion that he, by the agreement and understanding that existed between the partie.s, was not to furnish money as a further consideration to be added to the capital, that was to be employed in carrying on the business of the partnership, but was merely to give his credit, attention, skill and services to it, as it should be requisite in order to advance the common interest of all. But it belonged to the jury exclusively to draw this conclusion, and not to the court. We therefore think that the court erred on this point.
Some of the remaining exceptions to the charge of the court have been answered in what has been said on the exception just disposed of. It seems necessary, however, to notice the opinion of the court, in regard to the liability of the several partners of the firm to contribute to a loss sustained in carrying on the business of it where, for instance, it is agreed that two of three partners shall each furnish a certain sum of money as the capital to be-employed in carrying on the business of the partnership, and likewise give their skill, attention and services towards carrying on and performing the requisite labour of it, and that the third shall only give his attention, skill and.services to the business; and that the profits and losses shall be equally divided among the three. The opinion of the court was, that in such a case, the partner who *90was not to advance money for the purpose of making up the capital with which the business was to be carried on, was not bound to contribute money to make good any loss that might be incurred; unless it were otherwise expressly agreed by the parties; and conceiving that the defendant here was only bound, at most, to give his skill, credit, labour and services to the business of the partnership, without any express stipulation to contribute, in money, his one-third of any loss that might happen, directed the jury, therefore, that he was not bound to pay to the plain tiff the one-third of the supposed deficiency. The direction of the court to. the jury, in this particular, was certainly such as to take from their consideration every fact involved in the point; But whether the defendant had not expressly, or at least by necessary implication, agreed to contribute his one-third in money, to make good any loss that might accrue, was a question of fact,.which, we think, ought to have been left by the court to' the decision of the jury. It was not to be determined from the written memorandum alone, which doubtless contained their agreement in part, but from that, taken in connection with the whole of the oral testimony that was given on the trial. Indeed, I am far from being satisfied that the written memorandum does not go to show that it was the intention of the parties that, in case of loss, each should contribüte his proportion, say one-third thereof, in money; for the words of it are; “ the profits and losses to be divided equally between the three co-partners, share and share alike” Now it must be observed, here, that the profits and losses are coupled together, and to be shared in like manner. That the profits, if they consisted of money, were to be divided and shared in money, equally between the three, will not, I think, be denied; and why shall not the losses, if they consist of money, be divided and shared equally also, in like manner, that is, in money, between the three T But, at all events; it was a question of fact, which ought to have been submitted by the court to the jury, to be determined by them according to the intention of the parties, as collected from the whole of the testimony.
The judgment is, therefore, reversed, and a venire de novo awarded.