By the Court. In an action by one copartnership against another, the allegation of partnership whether as to the Plaintiffs or the Defendants is material, and its denial tenders an issue which it is the province of a jury to determine. At common law, the averment that the Plaintiffs were partners had to be proved as alleged. This was necessary even under the plea of the general issue, as that plea was construed as admitting only that there was a copartnership of some sort, but not that it was composed of the persons named in the declaration. Under our practice the allegation need not be proved, unless there be a denial; and there can be little doubt that the pleader in the present case not only deemed the allegation material, but made it in the expectation of .proving it if denied.
It is now urged that the allegation that the Plaintiffs were partners, may and ought to be treated as surplusage, because they did not further allege that as such partners they sold to the Defendants the goods for which action is brought. "We cannot do so, however, without also disregarding the allegation that the Defendants were partners; for it is not averred that the goods were sold to them as copartners, nor that they were purchased for the benefit of, or related to the business of the firm; and unless the Defendants are to be held as copartners, then the allegation in the answer of Defendant John E. Irvine, that the goods were purchased without his knowledge, approbation or consent, would present another important matter for the consideration of a jury. One copartner is not necessarily bound by the act of the other. There must be an authority express or implied. Copartners are presumed to have authority to act on behalf of their firm in all matters relating to the partnership business, but even in such a case it is im*233portant that the act of one partner, by which it is sought to bind the firm, should appear to be authorized or recognised by the others, or clearly within the general scope of the partnership business. "What business the Defendants were engaged in as partners is not alleged, nor is it averred that the goods sold to them were in the line of or had the most remote rela-' tion to the business of their firm.
We think the Court erred in withholding the case from the jury and giving judgment for the Plaintiffs upon the pleadings, and we therefore inverse the judgment and award a new trial.