1. Under our view of this case, it will not be necessary to decide the legal questions ably presented by opposing attorneys. As the material allegations of the complaint were denied by the defendant, it devolved upon the plaintiff to establish them by a preponderance' of the evidence. One of these allegations was that the defendant was a “silent partner” of the plaintiff in the Ewing contract and that for value he had promised and agreed with the plaintiff that he would pay one half of the latter’s liability under that contract and his own share of the expense arising therefrom..
The case is peculiar and the alleged contract is founded upon parol testimony only. The plaintiff’s testimony sustains the allegations of the complaint, but is flatly contradicted by that of the defendant. The testimony of Mr. Lomax, who was formerly his attorney, tends to corroborate the plaintiff, and the evidence of Mr. Fowler, formerly of counsel for the defendant, tends to substantiate the latter’s testimony. There is a sharp conflict in the effect of the testimony of the two attorneys and it is very apparent that as between the plaintiff and the defendant one of them is not telling the truth. There is much of the- evidence that sustains the theory of either litigant, but after a careful reading of all the record once and a large portion of it the second time, we are impressed with the direct, clear and positive testimony of the defendant.
*5There is another feature of the evidence to which we attach importance. During the trial of the case of Fargo and Baker to recover from this plaintiff upon one of the notes which he executed under the Ewing contract, at the instance of counsel the court took a recess. At that time Fargo and Baker as plaintiffs were represented by Hart and Fowler, who are now attorneys for the defendant in this action, and Wade, the plaintiff here, as defendant in that action was represented by Lomax as his attorney. Martin, the defendant in the present action, was in court as a witness at the trial of that cause. During the adjournment there was a conference between the litigants in that case and their respective attorneys for the purpose of arriving at a final settlement of all matters then in dispute between them. This occurred in a room connecting with and adjoining the courtroom where the trial was had. A general discussion ensued and different memorandum contracts were prepared by the respective attorneys, one of which was that in lieu of the Ewing option at a price of $25 per acre the plaintiff here should purchase the lands at an agreed price of $20 per acre. All of these negotiations consumed more than an hour and there is no claim or pretense that the defendant Martin was present at any time or that he was then consulted, yet he was close at hand in an adjoining- room.
Counsel for the plaintiff contends that the defendant was not consulted for the reason that he was only a “silent partner.” This was more than three years after the alleged secret agreement between them and there is nothing in the record which tends to show that the plaintiff and the defendant had ever conferred about or discussed the subject matter of the proposed *6agreement at any previous time, yet if the defendant was a “silent partner” it was an important matter to him and if consummated the plaintiff would have become the sole purchaser of nine hundred acres of land at a price reduced five dollars per acre below that of the Ewing option, and the option would have been wiped out and merged in the purchase. This is strong evidence that the defendant was not a “silent partner” in the Ewing contract. It is al,?o significant that during the period of more than seven years of the alleged silent partnership there is no written evidence of its existence.
While some of the testimony is contradictory and there is a direct conflict between that of the plaintiff and that of the defendant, as we analyze it the plaintiff has failed to establish his case by a.preponderance of the evidence.
The judgment is affirmed. Affirmed.
McBride, C. J., and Bean and Bennett, JJ., concur.