The opinion of the court was delivered by
Gibson, C. J.The evidence to charge the defendants consisted' of a series of letters written by Colhoun; from which it would seem, he had been let into some sort of participation in Campbell’s purchase.. All allusion to the subject, however, having been discontinued on the part of Colhoun for a period of thirteen years, the defendants-offered as additional evidence of the recision of their agreement,, six letters written by Campbell in a period of as many years, in which, also, there is no allusion to the subject, although it had, at one time been a leading topic of their correspondence. We cannot - admit that these letters were irrelevant, because the writer was-silent on the subject of the agreement: on the contrary, they were relevant for that very reason. In connexion with the lapse of thirteen years of silence on the part of Colhoun, the silence of Campbell for at- least six, was a powerful circumstance;; and were-the objection!of irrelevancy to prevail here, it must necessarily prevent a parly, under- any circumstances, from being affected by silence, which, though often more significant than words, has no positive allusion to any thing.. Neither do we admit the force attempted to be given to the objection that the defendants may have suppressed all but such parts of the correspondence as-suited their purpose. As to that, the plaintiffs had a right to. examine them on oath; and this, I understand, though tendered, was-declined.
In respect to the charge, it seems to me that both parties put *147to the court as a conclusion of law, what was properly a matter for the jury — the supposed liability of the defendants to contribution for the payments of Campbell whether more or less than his proportional part. It is obvious that this depended, in the first instance, on whether the parties had agreed to apportion the profit or loss; which is of the essence of partnership. Although it be by no means common, there may be a partnership to trade in land; and it may, as in any other case, be limited to purchasing only, the profit cr loss being divisible as stock; but this relation does not necessarily, or even naturally, arise from the bare circumstance of the parties having purchased jointly. The existence of partnership as deducible from faqts and circumstances, is not for the court but the jury; and in submitting propositions supposed to result from the evidence as conclusions of law, the plaintiffs abandoned the notion of a partnership having existed in fact, and went to thfe court on the supposed liability of the defendants as representing a joint purchaser. Then to put the case as favourably to them in point of fact as it will bear, we must suppose the parties had agreed to stand, as between themselves, in ■ the relation of joint purchasers, each separately paying kis share of the price, without being bound to bear an equal share of the loss; and in this aspect it is clear, they would not be entitled to the remedies, nor subject to the responsibilities of partners. The purchase was at a credit of eight years, with interest, at three per cent; after which, the principal was tobe paid at three, six and nine years, reserving six' per cent, on unpaid balances. Colhoun was taken into the purchase as if, it may be supposed, he had been originally concerned; and if Campbell paid, as there is reason to believe he did, all the interest as it became due, he paid a moiety of it to the use of Colhoun, for which a right of action instantly accrued, but which was subsequently barred by the statute of limitations. Laying partnership out of view, as the parties themselves have though fit to do, there was no agreement for advances, nor any thing which looked to the settlement of a final account. It even was not part of the agreement that they should contribute to a common fund. The advances of Campbell were in pursuance of his original liability for the whole, and they became demandable, not by virtue of any previous contract with Colhoun, but the contract which arose from the fact of payment, by implication of law. There was nothing to prevent Campbell from maintaining an action for a moiety of each payment the instant it was made; and I therefore cannot concur in the opinion expressed at the trial, that the statute was not a bar. The same obstacle would present itself to'a recovery,of the principal,*were it established-that Campbell, paid more than his share. He made various payments and th© *148jury were instructed that he had paid nothing to Colhoun's use* it being taken for granted that he had at no time paid more than his proportion of the instalment last due. Now the fact would depend on the manner of the appropriation, it being abundantly clear that a debtor may apply his payments to any particular debt or account, at his election; and had the plaintiffs desired the court to put the cause to the jury on the fact of Campbell’s having paid any particular instalment in.full, it would have been error to refuse it. They, however, thought fit to put the whole to the court as a matter of law, and it seems to me, therefore, that the principle assumed being right, we cannot say there was error in the application of it.
There is, however, another ingredient beside the statute of limitations, by which a defect in this part of the case would be cured. It appears from the whole matter, that the jury went on a distinct ground of fact, the recision of the contract. On no other ground could a verdict have passed for the defendants, as any application of the rule laid down, would have produced a balance to the plaintiffs. The statute of limitations being put out of the way, (whether erroneously or not, is at present immaterial,) the plaintiffs would have clearly been entitled to a moiety of the .moneys paid to keep down the interest. It being clear then, that the jury found on a distinct question of fact, which was decisive of the cause, it would be oppressive to reverse for a misdirection in law, if such there were, which did not relate to it. A court of error invariably disregards whatever has not contributed to the event; so that had there been misdirection in other parts of the case, it would have been insufficient to avoid the consequences of the verdict.
Judgment affirmed.