for the judges concurring.
In the petition for rehearing it is pointed out that in the grounds of defense filed by the defendant, Hobbs, it was alleged that the money loaned by the bank to the partnership was not to be used by Thomas to carry on the business; that the amount of assets of the partnership did not justify the bank in lending the amount of *800money that was loaned, and that the bank knew or in the exercise of dne care and caution should have known of both of these matters. It is argued that therefore these matters were embraced in the issues submitted to the jury. These statements in the grounds of defense are not exactly equivalent to the issues, for the trial of which the case was remanded. But they were apparently intended to put in controversy the matters included in the special issues prescribed in this court’s opinion, and the instructions of the court below in effect excluded them from the consideration of the jury.
On the trial below two instructions were granted at the request of the plaintiff. The first of these instructions given for the plaintiff bank told the jury practically that each member of a partnership is bound by the acts of any partner, and whenever a business of a firm involves the borrowing of money, notes issued within the scope of the business by one partner, in the name of the partnership, binds all partners. That last sentence in this instruction sta/tes that “under such conditions, it is of no consequence whether the partners were .acting in good faith or not.” The partnership business conducted by J. W. Thomas & Company was a trading or commercial business, involving buying and selling, and, therefore, under this instruction the borrowing of money was within the scope of the business and an implied authority resulted in Thomas to borrow money and execute notes therefor generally. But the effect of the entire instruction is to withhold from the jury consideration of the question relative to any issue of Thomas’ having exceeded his implied agency and so having overstepped his authority. The second of these instructions properly defined the liability of Hobbs as a partner. The mere fact that one partner borrows money in the firm name, in fraud of the other partners,' *801without the knowledge of the lender, does not prevent complete partnership liability.
In order that a recovery by the bank may be defeated, an affirmative finding must be returned by the jury in both of the two issues ordered; and as pointed out in the opinion of the court the burden of proof on the trial of these issues rests upon the defendant in the case, as they involve an affirmative defense.
The evidence in the present record, bearing upon the two issues is, we think, sufficient to warrant the court in remanding the case. Its strength and weight depending chiefly upon the oral testimony of Mr. Hobbs, at tim.es vague and indefinite, and upon some of the documentary evidence, may not be very convincing, but this court should not undertake to determine any inferences which may be drawn from it, nor whether any inference adverse to the bank can or should be drawn from. it.
The court has given this case and its companion ease, in which the Virginia National Bank is. the plaintiff, prolonged consideration and a majority of the court finally agreed upon the disposal of them as made by the opinions announced.
The rehearing is denied.
Reversed and remanded.