¶1This action is upon an account against defendant as a member of the firm of Patton & Cheat-wood. It was begun before a justice and after trial and judgment appealed to the circuit court, where .the court, after hearing the evidence, gave a peremptory instruction to find for the plaintiffs. The only issue presented was as to the fact of copartnership.
¶2Plaintiffs gave much evidence tending to prove the affirmative of this issue. Defendant, however, testifying for himself denied the fact of copartnership or that he ever held himself Out as occupying such a relation to Cheatwood. This presented a conflict in the evidence, and the burden being upon plaintiffs to prove their case the court should have submitted the issue of fact to the jury. For its refusal so to do, the judgment will be reversed and the cause remanded.