dissenting.
The first allegation of error in this case is, that the Court below permitted the deposition of Samuel G. Willard to be read, against the objection and exception of the defendants, in the District Court. The testimony of Willard was as to declarations made by one of the defendants (G. F. White) to him, that he and one or both of the other Whites were partners. The deposition was not read on the part of plaintiffs in the Court below until the introduction of his rebutting evidence. It was objected that it should have been brought forward when *368- plaintiff introduced his evidence in chief; and further, that a partnership could not be established by the declarations of one alleged partner as against the others. To establish the fact that G. F. White was a partner, the evidence was proper, considered apart from the question as to the time it was offered.
And although the rule is as stated by counsel, and is one which should be adhered to, except for good reasons, yet it is not inflexible; but it is a matter resting with the Court before which the trial is had to permit either party to introduce testimony out of the prescribed order. Here was reason for its introduction on the rebuttal: G. F. White had testified on his own behalf as a defendant. While on the stand, his attention was directed to a conversation with Willard at the time and place subsequently sworn to by Willard; and he denied having éaid what was imputed to him. Willard’s testimony was calculated to impeach him, and could only be brought on at the time it was.
The testimony of McCartney was objected to for like reason. We see no error in the admission of that of either.
Next, complaint is made of the charge of the judge given to the jury, as well as his refusal to charge as requested. As to the former, the charge was at length, covering several propositions, some of which are undoubtedly good! We took occasion to announce the familiar rule in McReady v. Rogers, 1 Neb., 124, that 'such an exception is unavailing. In such case it becomes the duty of the party excepting to point out the specific part or parts to which he excepts. Walsh v. Kelley, 40 N. Y., 556 ; Hart v. The Rensselaer and Saratoga Company, 4 Seld., 37; Osgood v. Osgood, 2 Seld., 233; Haggard et al. v. Morgan, 1 Seld., 422; Jones v. Osgood, 2 Seld., 233; Caldwell v. Murphy, 1 Kern., 416; Zabriskie and Others *369v. Smith, 3 Kern., 323 ; Magee v. Badger and Others, 34 N. Y., 247.
Passing to the instructions asked by the attorneys for the defence, and which the Court refused to give, we find among them this request of the Court to say, “ That upon the testimony in'this cause the jury could not find against all of the defendants Whites.” To understand whether such request should have been complied with, we must know the issue made, and the testimony given bearing thereon.
The action is for work performed, and is brought against Everest, Wadsworth, F. A. White, C. J. White, and G. F. White, as partners, doing business under the firm name of Wadsworth & Everest. The answer denies the existence of any partnership of the Whites.
On the 31st of July, 1869, Everest & Wadsworth entered into a contract with Converse & Co. to grade a certain portion of the road-bed of the Midland Pacific Railroad. By writing annexed to the agreement between Converse & Co. and Wadsworth & Everest, F. A. and C. J. White became sureties for the performance, by Wadsworth & Everest, of the contract; and a clause is inserted in the agreement itself, that they shall have the right to receive payments for work done, and receipt for the same as fully as Wadsworth & Everest.
Aug. 28 of the same year, the plaintiff below (Strader), in writing, agreed to do the work on a certain portion 6f the road then taken to grade by Wadsworth & Everest. To recover an unpaid balance for work so done, this action was brought. There is no suggestion, nor is there any evidence to show, that Strader, at the time of engaging to do the work, understood, or had any reason to believe, that' any of the Whites were interested with Wadsworth & Everest; and, as Wadsworth & Everest alone appeared in the transaction, no right of action *370arises against the Whites from their having held themselves out as partners, whether they were such in fact or not. Neither does it appear from the testimony that they ever received any of the profits, if any there were, out of the contract of Wadsworth & Everest with Converse & Co.
To connect F. A. White with the partnership, we have the testimony of Everest, who says, “ The firm of Wads-worth & Everest was composed of Wadsworth, Everest, and Francis A. White. F. A. White was to have a one-third interest in the contract. This was a private arrangement between Wadsworth & Everest and F. A. White. The arrangement was made about' the 25th of June, 1869 ; and it was arranged at the same time that F. A. Whitens interest should be assigned to his two brothers, Charles J. and G. Frederick. ... We never made any other arrangement about it. . . . This was not in writing. ... We transferred one-third interest to his brothers about the 5th of August, 1869. This was in writing.” A copy of this writing, the original being burned, was read in evidence, as follows: —
“ For and in consideration of services to be rendered by C. J. White and G. F. White, we hereby transfer and assign one-third of the net profits of the contract taken by or of J. N. Converse & Co. to do the earthwork from station 528 to the west end of section 39, inclusive, of the Midland Pacific Kailway, to the said C. J. and G. F. White; and it is further agreed that we shall furnish said G. F. White a weekly statement of all expenditures to be charged to account of contract. Said G. F. White may attend to financial disbursements, and said C. J. White may superintend and sub-let said work.” This is dated Aug. 2, 1869, and signed by Wadsworth & Everest.
Wadsworth testifies, “ The firm of Wadsworth & Ev*371erest was composed, as I understand, of A. J. Wadsworth, David Everest, and Francis A. White. The agreement between myself and Everest and Francis A. White, that he (White) should have an interest, was made in White’s office. White did not want any outside parties to know he had an interest in the contract, but wanted his brothers, C. J. White and G. F. White, to attend to his interest in the contract.”
F. A. White denies that he ever took or wanted a one-third interest; that as a friend to Wadsworth & Everest, who had worked on the same road of which he was an officer, and having waited in expectation of this contract, he gave them his assistance in procuring it; that, in consideration of‘his signing as surety, Wads-worth & Everest were to trade at the store of G. F. White and Fitchie.
Much argument has been expended in this Court upon the question, as to whether the assignment of Wads-worth & Everest to C. J. and G. F. White, giving them a third of the net profits of their contracts, constituted C. J. and G. F. White partners, and, as such, made them, liable with Wadsworth & Everest. Without discussion of that question, let it be conceded that the Court held correctly, — that a party who contracts for a share of the profits thereby becomes liable as a partner. Either the assignment to C. J. and G. F. White was for their own benefit, or for the benefit of F. A. White. There is no evidence whatever from which the jury were authorized to find that a two-thirds interest in the contract was assigned. Wadsworth & Everest, in their evident anxiety to swear in as many sharers in their loss as possible, do not in the remotest manner claim that a two-thirds interest was so disposed of. If C. J. and G. F. White took in their own right, no claim can be made against Francis A. White. If they took, pursuant to the agreement sworn *372to by both Wadsworth and Everest, the interest for F. A. White, then they have no interest in fact; and, not having held themselves ont as partners, they should be released. Upon the construction given the assignment by the Court, there is no evidence upon which the question, whether either F. A. White was, or C. J. and G. F. White were partners, and, if so, which, might be determined by a jury. But there is no evidence in the record to warrant the jury finding all three of the Whites liable as partners; and it was error, in my opinion, for the Court to refuse so to charge.
It is not the province of this Court to disturb the finding of a jury, where it has evidence to support it, merely because such finding is against the weight of evidence. Browne v. Vredenburgh, 43 N. Y., 195.
But the finding of a material fact without evidence to sustain it is an error of law. Mason v. Lord, 40 N. Y., 476.
The judgment should be reversed, and a new trial awarded.