GIDDEY V. ALTMAN.

of sale transferred the title to Armstrong & Co. It is not necessary for us to decide whether this instruction was correct, as we think Mrs. Altman had the prima facie right, and that the defendant below, by failing to show that the sale had been declared void, wholly failed to establish a defense. The judgment should therefore be affirmed, with costs. But we have not deemed it proper to give an interpretation to the agreement further than was necessary to dispose of the questions on the present record, as it is obvious that different questions might possibly arise should there be further controversy, which might depend for their solution more or less on facts not now before us.

The other Justices concurred.

Robert Hadden and another v. George E. Shortridge and others.

Partnership: Evidence. The unity of interests in plaintiffs who claim as partners, is not necessarily to be shown by direct proof; it may be established by circumstances; and where the circumstances shown have some tendency to prove the fact, and the question has been properly left on the evidence to the jury, their verdict will not be disturbed on error upon the ground of the insufficiency of the evidence.

Evidence: Hearsay: Incompetency: Irrelevancy. Judgment will not be reversed because hearsay evidence that is not irrelevant has been admitted without objection at the time; by allowing such evidence to be introduced without objection a party treats it as competent, and is thereby precluded from raising the question on error.

Error to Oakland Circuit.

Heard April 25. Decided April 29.

Minock & Baker, for plaintiffs in error.

B. L. Ransford, for defendants in error.

GRAVES, J.

HADDEN v. SHORTRIDGE.

The defendants in error sued as co-partners and alleged their firm name to be "Shortridge, Rutherford & Co." Judgment passed in their favor in the court below, and a revision is claimed in this court on a bill of exceptions. The only question in the case is whether the court erred in giving the case to the jury upon the evidence relating to the connection of the plaintiffs as partners. A witness testified that he knew they were partners from having been in their place of business, from having received letters from them as partners, and from having done business with them as partners, and from reputation. On cross-examination he further stated that he had never seen but two of the plaintiffs, that all he knew about their being in partnership was that one of them stated to him that the persons mentioned were partners and constituted this firm, and that the plaintiffs also wrote to him that they were in partnership. This testimony was all put in without any objection, and the court charged the jury that unless they were satisfied from the evidence that the plaintiffs were partners in business, the verdict should be for the defendants. This was correct. The testimony introduced without objection was certainly relevant, and we cannot say it had no legal tendency to prove the fact. It was sufficient to be passed upon by the jury, who were the proper triers of its sense and weight.Drake v. Elwyn, 1 Caines' Rep., 184; 2 Saund. P. & Ev., 705. The unity of interests in the plaintiffs is not necessarily to be shown by direct proof. establish the fact by circumstances. the power of one member to subscribe the firm name as accommodation sureties for a third person may be so proved. -Butler v. Stocking, 4 Seld., 408; and in Weed v. Carpenter, 10 Wend, 404, it was decided that such proof was competent in a suit against an indorser of a note to show that the indorsement which appeared to be in the hand-writing of the maker was authorized by the alleged indorser.

It is competent to It has been held that

HADDEN V. SHORTRIDGE.

The circumstances in the case before us afforded some evidence leading to the conclusion that the named plaintiffs composed the alleged firm, and there was nothing to contradict or impair it. It was proper for the jury to interpret it and judge of its sufficiency to satisfy their minds. We are not to be understood as intimating that evidence of reputation or hearsay, if objected to, is admissible to prove a partnership. But in allowing it to be introduced in this case without objection, the plaintiffs in error treated, it as competent, and they are precluded from making the point in this court that it was not.

The judgment should be affirmed, with costs.

The other Justices concurred.

Hugh McCurdy v. Joseph R. Bowman and another.

Equity pleading and practice: Appeal: Notices: Service. An appeal in chancery in a case where the evidence has been taken in open court will not be dismissed for the reason that the notices of appeal and of settling a case upon the evidence were served upon the appellee in person instead of his solicitor of record, where he is himself a solicitor of the court and has taken part in the management and trial of the cause and made no objection to the service at the time.

Heard April 29.

Decided April 30.

Appeal in Chancery from Shiawassee circuit.

Motion by complainant (appellee) to dismiss the appeal.

Theodore Romeyn, for the motion.

C. A. Kent, contra.

PER CURIAM.

Motion to dismiss an appeal in chancery in a case where

MCCURDY V. BOWMAN.

the evidence had been taken in open court, for the reason that the notices of appeal and of settling a case upon the evidence, had been served upon the complainant (appellee) in person, instead of his solicitor of record.

It appearing, however, that the complainant was himself a solicitor of the court and had taken part in the management and trial of the case, and that when the notices were served upon him, he made no objection to such service being made upon himself instead of his solicitor, which, if made, would have enabled the solicitor for the appellant at once to have corrected the error and made the service upon the solicitor: Held, that his own conduct, having tended to mislead the appellant's solicitor into the belief that such service was satisfactory, complainant cannot now object to the validity of the notice for the purpose of dismissing the appeal or invalidating the case settled upon such notice.

Motion denied.

Daniel J. Campau v. Jacob S. Traub and another.

Stipulation: Testimony: Cross-examination.

Under a stipulation that the "tes timony" of a witness who was examined and cross-examined on a former trial, as the same was taken down by the official stenographer, might be used in evidence, it is error to exclude the cross-examination after having admitted the direct, even though at the request of the party who had conducted such crossexamination.

Practice in supreme court: Error: Prejudice. While it is the duty of the party who complains of error to show its existence, it generally devolves upon the other party, on whose motion the error was committed, to show, if he so claims, that the complaining party was not prejudiced by it.

Rent: Receipts: Evidence: Relevancy. In an action to recover rent, receipts for rent for certain months preceding those for which recovery is sought, standing by themselves and unconnected with the case by any other evidence, are irrelevant.

Error to Wayne Circuit.

Heard April 23.

Decided May 6.

CAMPAU V. TEAUB.

Henry M. Cheever, for plaintiff in error.

Alfred Russell, for defendants in error.

COOLEY, J.

This is a suit brought by the lessor against his lessees to recover two months' rent. It was tried once before, and Daniel J. Campau, Jr., was then a witness for the plaintiff, and his examination and cross-examination were taken down in writing by the official reporter. For a second trial it was stipulated by the parties in writing that the "testimony" of said witness, thus taken on the former trial, might be used in evidence. When, however, the

written evidence had been offered and the direct examination had been read, the defendants' counsel stated they did not want the cross-examination, and objected to its being The plaintiff claimed a right to have it read, but the court excluded it.

read.

The ruling was erroneous. The stipulation covered the whole testimony, and the plaintiff had a right to the whole. Indeed, in this court no serious attempt has been made to support the exclusion; but it is insisted that the judgment cannot be reversed on that ground, because the bill of exceptions does not set out the cross-examination as taken down, so that we may see whether the defendants were injured by the exclusion; and consequently we cannot see that an error was committed to their prejudice. But while it is unquestionably the duty of a party who complains of error to show its existence, it generally devolves upon the other party, on whose motion the error was committed, to satisfy the court that the complaining party was not injured by it. And when legal evidence once taken in the case and presumptively relevant to the issue, is excluded, we cannot assume that the party offering it was not injured by the exclusion, when we have no better basis for the assumption than the fact that the excluded testimony was the cross-examination of his own witness. The testimony