The opinion of the Court was by
Shepley J.To entitle the plaintiff to recover he must prove, that one at least of the defendants accepted the order by the partnership name. That they were at that time partners in the business, to which it related. And that they had received their “payments from A. Woodman on his house.” The order having been read in evidence, the only inference, *316which this Court can make, is that the signature of the partnership name was either admitted or proved to have been made by one of the defendants. The existence of a partnership between them might be proved by their acts and declarations. Proctor states, that they made the contract with him. That they informed him, that they had accepted this order; that they settled with him for his labor; that they spoke of being obliged to pay the order ; and of having made a contract with Woodman, and of having adjusted it and delivered it up, taking his note for about fifty dollars. These acts and declarations a jury might infer were to be attributed to both the defendants, for Proctor speaks of their declarations and of those, which Sleeper alone made to him, shewing that he apparently made a distinction between what was said by one and what was said by both. From this testimony a jury 'might conclude, that they were partners in that transaction and that the signature was binding upon both of them. And might fairly conclude from the testimony of the same witness, that they had made a written contract with Woodman by which payment was secured for the labor upon his house; that after the order was accepted in August they had settled that contract and discharged Woodman from it; that when they settled with Proctor in November following they admitted it to have been so discharged as to render them liable upon the order, and in consequence of it took their pay of him for it as having paid it. The indorsements on it might tend to corroborate his statements.
They took Woodman’s note on their settlement with him which does not appear to have been paid. That however would not be conclusive evidence, that they had not received their payments of him on account of his house. If they chose to receive it on that settlement in payment, they could not, as against others, allege the contract to remain unpaid. Whether the note was received in payment it was the province of the jury to determine. And they might from all the circumstances stated by the witness conclude, that all the payments on ac*317count of the house had been fully made although the defendants had not received a note in part payment.
The Court may, according to our practice, order a nonsuit when the testimony introduced by the plaintiff will not authorize the jury to find a verdict in his favor. But in this case, the Court does not perceive, that it would have been obliged to set aside the verdict if one had been found for him.
Exceptions sustained, nonsuit set aside, and a new trial granted.