(after stating the facts.) This is the second appeal in this case. The opinion on the first appeal is found in Rector v. Robins, 74 Ark. 437.
I. Appellant contends that the court erred in permitting evidence of the names in certain letter-heads. Witness Roberson testified that W. H. Robins (appellee) was a member of the firm of Purdom, Roberson & Company. Letter-heads were exhibited to this witness on his cross examination containing the names of W. A. Roberson, Jim Purdom and L. J. Robins, as members of the firm of the Red Land Lumber Company. Witness was asked if his firm used these letter-heads, and answered “Yes.” He was then asked: “At the time these letter-heads were printed, didn’t you give to W. J. Old the names of the members of the firni and tell him how to print them ?” To this he answered: “No, sir; I didn’t.” Witness was also asked: “Didn’t that firm, Purdom, Roberson and Company, issue some letter-heads under the firm name and style of the Red Land Lumber Company?” The answer was, “Yes, sir.” The testimony of Old that he printed these letter-heads at the request of W. A. Roberson, who gave the names to go on the letter-heads, and that the list of names given him to print as members of the firm contained the name of L. J. Robins, instead of W. H. Robins, was admissible to contradict the witness Roberson. • The foundation for the impeachment of the witness on the subject-matter of these inquiries was sufficiently laid by calling the attention of the witness to the “time the letter-heads were printed,” and to the printer who did the printing. The letter-heads, in connection with the testimony showing the circumstances under which they were printed, were likewise competent testimony tending to contradict the witness W. A. Roberson and show that W. H. Robins was not a member of the firm of Purdom, Roberson & Company.
W. A. Roberson on cross examination testified, without objection from appellant, that the firm of Purdom, Roberson & Company bought a remnant of goods of one Hooker; that Robins advanced the money to pay for this; that the firm of Purdom, Roberson & Company executed to him a mortgage, dated July 11, 1900, to secure him for the advancement. Roberson testified that the mortgage was signed by all the members of the firm of Purdom, Roberson & Company. Appellee introduced over objection of appellant this purported mortgage. It was signed “Jas. S. Purdom, W. A. Roberson, L. J. Robins.” W. A. Roberson having testified that the firm of Purdom, Roberson and Company signed this mortgage and that W. PI. Robins was a member of the firm, the mortgage was competent as tending to contradict him as to who composed the firm of Purdom, Roberson & Company and as affecting the accuracy and credibility of his testimony. The mortgage as an independent evidentiary fact would not have tended to show that W. H. Robins was a -member of the firm of Purdom, Roberson & Company, but, taken in connection with the testimony of Roberson that -it was executed by the firm of Purdom, Roberson & Company, and that W. H. Robins was a member of that firm, it was competent evidence for the purpose named.
W. A. Roberson testified that late in the summer of fall of 1899 W. H. Robins became a member of the firm of Purdom, Roberson & Company; that after this he went to Texas, and-leased the land from Conway for the mill, and executed notes for the same. He was asked this question: “Is this the note given by you all as members of the firm to Mr. Conway for that land?” His answer wa-s: “Yes, sir; I suppose s-o.” Two notes to E. M. Conway for $50 each, executed September 1, 1899, and signed by “James S. -Purdom,” W. A. Roberson,” and “W. H. -Robins, security,” were admitted over appellant’s objection. The notes were competent testimony, because they showed that W. H. Robins signed same as “surety”, and this fact tended to contradict the testimony of Roberson that the notes were given by the signers as members of the firm. . For, if W. H. Robins was a member of the firm, and had signed the notes as one of the members, he could not have been a surety for the other partners, which the notes themselves show he was.
Appellant introduced a witness, Gaines, who- testified that about the last Sunday in August, 1899,. W. H. Robins stated to him that “he, Mr. Purdom and Mr. Roberson were going into the mill business, and that they wanted his timber.” He testified that he sold the timber the following spring to W. H. Robins, and in June entered into a contrct with him. Appellee, on cross-examination, questioned the witness concerning this contract, and over objection of appellant introduced the contract in evidence, which was signed by G. B. Gaines, Redland Mill Company by R. J. Robins, and W. IT. Robins, “security.” The testimony and the contract were proper on cross-examination. This examination was .responsive to the examination in chief, and the evidence elicited tended-to contradict the witness Gaines.
Witness W. A. Roberson was asked ion cross-examination: “Did you state to Gossett at the commissary in February or March, 1900, that you and Jim Purdom and Rem Robins constituted the firm of Purdom, Roberson & Company.” He answered : “No sir; if I did, I have no recollection of it.” Appellee, over appellant’s objection, was permitted to prove by Gossett that Roberson at the time and place mentioned did make to him the statement. Appellant excepted to the ruling of the court in permitting this testimony. The .ruling of the court was correct. The testimony was competent by way of impeachment of the witness. Roberson.
• ' W. J. Randrum, a witness for appellee, testified that he was the traveling salesman who sold the machinery to Purdom & Company. Pie made the contract with Purdom. It was the rule of his company to have all the members of a new firm to sign the contract for purchase of machinery. It was required in the case under consideration. The order for the machinery was signed, “Purdom and Roberson.” It was signed thus by Purdom. Witness had nothing to do with taking the note, had never heard of W. H. Robins in the matter. Witness sold the machinery before the mill began. Appellant excepted to the ruling of the court in permitting this testimony. But the testimony was certainly not prejudicial to appellant. There was nothing to prove that W. H. Robins was not a member of the firm of Purdom, Roberson & Company at the time the note in suit was executed, or that he had not been a member of such firm before that time. There was no prejudicial error in this testimony. The testimony of this witness was not relevant, but appellant has no cause to complain of the error in admitting it.
Appellee was permitted to show that W. A. Roberson had said in the presence of witnésses Rosseau and Riddick in February, 1900, in Hempstead County, Arkansas, that he, Roberson, Purdom and Lem Robins constituted the firm of Purdom, Roberson & Company. Witness Roberson was questioned concerning this while on the witness stand, and said that he had no recollection of having made such statement in Hempstead County at the mill or any where else at any time. The testimony was proper by way of impeachment of the witness Roberson. But, if not, it was not prejudicial to appellant because there was nothing in this to prove that Robins, appellee, was not a member of the firm of Purdom, Roberson & Company at the time the note in controversy was indorsed by appellant.
The declaration of Purdom, before the execution of the note, as to who constituted the firm óf Purdom, Roberson & Co., even if competent to show who the partners of the firm were, did not prejudice the substantial rights of appellant unless it tended to show that W. H. Robins was not a member of the firm when the note was executed, and such was not the effect of the declaration.
2. The court, among others, gave instructions numbered six and nine at the instance of appellant.*
These and others on special phases given at appellant’s request, in connection with those given for appellee, fully and fairly presented the law of the case to the jury. Other requests were properly refused because they were grounded-upon the idea that, if appellee was a member of the firm of Purdom, Roberson & Company before appellant indorsed the note in suit, appellee in that event was liable absolutely. These- prayers, so framed, were, in conflict with others given, and ignored the question of withdrawal or notice, which were issues in the case.
Appellant’s prayer numbered 11† was abstract. It was not a case of partnership established by circumstantial evidence.
Appellant’s prayer numbered 12‡ was -argumentative — a charge from the court on -the weight to be given a certain phase of (the evidence. This is forbidden. Const. art. 7, § 23; Polk v. State, 45 Ark. 165; Stephens v. Oppenheimer, 45 Ark. 592.
Hire, C. J., not participating.Affirmed.
"6. The jury are instructed that the burden of proof is on the plaintiff, in the first instance, to prove that there was a partnership of which the defendant, W. H. Robins, was' a member before he will be liable in this action. And if the jury find from a preponderance of the evidence in the case that the defendant, W. H. Robins, was a member of the firm of Purdom, Roberson & Company before the plaintiff indorsed or became surety on the note in controversy, the burden will then shift to the said Robins, and it will devolve on him to establish, by a preponderance of the evidence, a notice of withdrawal or dissolution in the manner set out in these instructions.
“9. The jury are instructed to find for the plaintiff if they find from a preponderance of the evidence that W. H. Robins was a member of the firm of Purdom, Roberson & Company at the time that firm commenced business or afterwards before the indebtedness sued on was incurred, and the plaintiff extended (the credit for the claim sued on in the faith of his belief that W. H. Robins was such a partner, then and in that event the said W. H. Robins would be liable for the amount of the note sued on and interest, unless he gave actual notice to the plaintiff or gave notice generally by advertisement in some newspaper published in (the locality or county of the partnership before said indebtedness was incurred.”
“11. It is not necessary that a partnership be established by direct evidence. It may be shown by circumstances or by facts in evidence from which a partnership may be inferred.”
“12. The jury are instructed th-at if they find from a preponderance of the evidence that (the defendant, W. H. Robins, entered into a contract with Purdom & Roberson whereby he was to share with them in any profits of the mill business, this will be deemed in law one of the most cogent evidences of partnership.”