¶1delivered the opinion of the court.
¶2We are of opinion that this case was fairly put to the jury by the instructions given by the court. The matter of partnership was made to play a more prominent part in the cause than it deserved. McCain could not by his acts, conduct or declarations make himself a partner of the plaintiff without his knowledge and acquiescence. He could not give himself credit as a partner, by holding himself out as such, without the consent, express or implied, of the plaintiff. It is useless to review the instructions separately, as they clearly put the fact of partnership to the jury, which was the only one on which the defendant relied, and which was negatived by them and very properly, if we may judge by the record, as there was little or no evidence in support of it. If the case is as presented by the record, no benefit whatever could result from the granting of a new trial. Affirmed;