delivered the opinion of the Court:
This bill was filed by complainant against defendant to settle the accounts between them growing out of the purchase and sale of a lot of cattle as partners or on joint account, the profits to be divided equally. It is alleged in the bill, complainant advanced for the use of the firm the sum of $1100, with which the purchase was made, and that the entire proceeds of the sale of the cattle, including a net profit of $120, were received by defendant. It is not denied the proceeds of the sale of the cattle, including all profits, came into the hands of defendant, but defendant denies the existence of any partnership between himself and complainant, and alleges the only partnership relation ever existing between complainant and himself was in connection with Loriu 1ST. Ashley, between whom the profits of the business were to be divided equally. On the hearing the court directed that Lorin 1ST. Ashley be made a party defendant, which was done by an amendment to the bill. But Lorin If. Ashley, by his answer, disclaimed having had any interest in any dealings, either as partner or on joint account with complainant and defendant, and the court seems to have found, by its decree, the answer in that particular was true, and proceeded to adjust the accounts between complainant and defendant.
The proof shows, complainant and defendant and Lorin If. Ashley had been partners in the business of buying and selling hogs, but whether they were partners in the venture in cattle, out of which this controversy arose, the testimony is very conflicting. The court, after hearing the testimony, found they were not partners as to this transaction, and we are unable so say the finding is not warranted by the evidence. On that all important fact in the case, the evidence is nearly equally balanced, and much consideration is due to the finding of the court before whom the cause was heard.
Conceding the cattle were bought by complainant and defendant as partners, or on joint account, as the court has found, it only remains to inquire whether the court adopted the proper basis for adjusting the accounts between them. Both parties have assigned errors on this part of the decree. It is very clear, from the evidence, that $1000 of the, money used in buying the cattle belonged to the firm composed of complainant, defendant and Lorin If. Ashley, that had been received by complainant from the sale of a lot of hogs that belonged to that firm. Of course one-third of that sum belonged to defendant, and as Lorin If. Ashley disclaimed having any interest either in the cattle or the money with which they were bought, the other two-thirds may be treated as belonging to complainant. In no view that could be taken is defendant entitled to one-half of the $1000, as he now insists he is. If or is there any reason for allowing complainant for the whole of the $1000 as so much capital. It is conceded it was partnership funds, and as there had been no settlement of the partnership affairs, it could not be said it was the individual money of complainant. The other $100 used was furnished, by complainant out of his own" funds. Regarding defendant as being entitled to one-third of the $1000, as he certainly was, and the other two-thirds as belonging to complainant, the bas.is adopted by the court for adjusting the accounts between the parties was the correct one. With that part of the decree we are entirely satisfied.
On the other branch of the case, about which there is the most contention, as before remarked the evidence is so conflicting we do not feel authorized to disturb the finding of the court upon the "question of fact involved.
Perceiving no sufficient grounds for reversing the decree, it must be affirmed.
Decree affirmed.