delivered the opinion of the court.
This case arose out of an action brought against the plaintiff in error, Eugene S. Hobbs, and another,
The evidence shows that the bank, the plaintiff in the lower court, had been doing business with J. W. Thomas & Company since 1900, and loans to that firm increased until at the time of the death of Mr. Thomas they amounted to over $12,000.00, for which a judgment was rendered in the lower court. The evidence is quite similar to the evidence upon the trial of the action brought by the Virginia National Bank of Petersburg, Virginia. The bank in this case was the bank to which the statement of 1922, purporting to have been signed by Thomas and Hobbs, and in which it was stated that they were partners and had been such since 1900, was given. There is one distinction between the two cases arising from the fact that in this case Mr. Hobbs disputed his signature to the statement of 1922, and there was some evidence tending to raise a doubt as to whether that signature was in his own handwriting. In view of that character of evidence, the court instructed the jury as follows: “The court instructs the jury that before they can consider the statement dated January 1, 1922, for any purpose at all, the burden is upon the plaintiff to show by the greater weight of the evidence that the same was actually signed by E. S. Hobbs.” The difference in the evidence in this respect in the two eases is fully covered by this instruction.
The instructions given by the court to the jury at the end of all the evidence in this case were far more
This case depends in all respects, except those just pointed out, upon the principles of law which governed the court in its decision in the prior case referred to, and it is unnecessary to repeat what was there said. For the reasons set out in the opinion of the court, reported, post, page 802, 128 S. E. 46, and in the opinion rendered this day upon the rehearing in the case of Eugene S. Hobbs v. Virginia National Bank of Petersburg, Virginia, post, page 802, we are of opinion that Hobbs became a partner by estoppel with reference to the notes sued on. For the same reasons given in the last mentioned opinion the case will be reversed solely for the purpose of having the issues therein prescribed tried by a jury. An order to that effect similar to the order in the other case will be entered, and so the case will be reversed and remanded.