1. The complaint charges the defendants as copartners, to wit: U. Simon and D. Simon, with having purchased the goods of plaintiff.
2. No defense is made by defendant, D. Simon. U. Simon denies, in his answer, the partnership and indebtedness.
3. The questions presented were purely those of fact, and passed upon by the jury.
4. The Court will not disturb the verdict of the jury, when the same is founded upon facts properly submitted to them.
5. The appellate Court will not disturb the order of an inferior Court in granting or refusing a new trial, unless manifest error shall appear. (Bartlett v. Hogden , 3 Cal. Rep. 55.) Nowhere the decision of the Court is upon mere questions of fact. (3 Cal. 42.)
6. This Court has always refused to interfere with the verdict of a jury where the evidence is dubious or conflicting, nor will it interfere with the discretion of the Court below in granting or refusing a new trial. (4 Cal. R. 104; 2 Cal. R.)
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Chief Justice Murray and Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
The admission, in evidence, of the letter to the plaintiff, signed " Simon & Bro.," without any proof that it was written by U. Simon, or was in his handwriting, or that he authorized it to be written, was clearly erroneous.
It would be a hard case to make one liable as a partner upon the mere unauthorized statement of a third person. Partnership must be proved like any other fact, and cannot be established by mere surmise, suspicion, or inuendo. The same point was decided by this Court in Sinclair v. Wood (3 Cal. 98).
The judgment is reversed, and the cause remanded.