EBBOB TO TI-IE COUBT OF COMMON PLEAS OF MCKEAN COUNTV.

No. 44 January Term 1889, Sup. Ct.; court below, No. 401 May Term 1888, C. P.

On April 20, 1888, an action of assumpsit was brought by C. F. Watt and J. B. McElwaine, lately trading as Watt & McElwaine, now to the use of J. B. McElwaine, against Charles Sipler, John J. Ashbaugh, Joseph Gates and Eli Logue, partners, lately trading as Sipler, Ashbaugh & Co. Joseph Gates alone was served, and to the plaintiffs’ narr in the common counts, to which was attached a copy of a book account for goods sold and delivered, he pleaded, non-assumpsit.

At the trial on February 15,1889, the sole contention was upon the fact whether or not the defendant Gates was a member of the partnership against which the writ issued. Testimony was introduced from which it was claimed on the part of the plaintiff that the defendants in the writ were partners in the drilling of an oil well for which the goods were supplied ; that Gates had a one 'fourth interest therein, and in the leasehold on which it was located, contributing one fourth of the cost thereof. The plaintiff testified that he had presented the bill to the defendant: “ I spoke to him about it, and told him about the unsettled account of Sipler, Ashbaugh & Co., and told him it was time it was settled, and he asked why I hadn’t spoke to him about it before; that he supposed the matter was settled; that he had paid his share and more too, and didn’t think he ought to pay any more. I told him it was not my fault, that it was not settled; that it was his business to see that it was settled. I had spoken to the other parties.” The defendant denied that he was a partner in the drilling of the well and testified that he had only purchased a one fourth interest in the lease with the well upon it drilled to completion. On cross-examination, he was asked: “ Q. Suppose the well never was completed, what part of the stuff would you have owned? A. I would have owned one fourth.”

The other testimony submitted sufficiently appears in the charge to the jury, Olmsted, P. J.:

The ease which you have been sworn to try is an action of assumpsit brought by Watt & McElwaine for the use of Mc-Elwaine, against four persons as partners; against Gates, Sipler, Ashbaugh and Logue as partners. The allegation on the part of the plaintiff is, that these four persons were partners in the oil business in Butler or Clarion county in this state, and that he sold a quantity of goods on the credit of this partnership. The evidence seems to show that the goods were sold sometime in November or December of 1876. The defendants here defend on the allegation that there was no partnership existing between these four men who are sued as partners.

Before we proceed any further we have been requested by counsel for defendant to answer certain points in writing, which we will answer now and proceed with our general charge.

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