text:
    SNARSKI v. MONTREAL MINING CO.
    Master and Servant — Mines and Mining — Explosives—Contributory Negligence.
    Evidence that plaintiff, a miner, in defendant’s employ, having upwards of eight years’ experience, exploded certain blasts which he had prepared and thereupon returned to the place where he had been working, when one of the charges which had not been discharged exploded and injured him, warranted the court in directing a verdict for defendant on the ground of contributory negligence.
    Error to Gogebic; Cooper, J.
    Submitted April 24, 1913.
    (Docket No. 39.)
    Decided September 30, 1913.
    Case by Joseph Snarski against the Montreal Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings erorr.
    Affirmed.

      Le Gendre & Driscoll, for appellant.

      Belmont Waples and William F. Shea, for appellee.
   Moore, J.

Plaintiff, 28 years of age, a miner by occupation, was injured while working for the defendant in its Montreal iron mine in Wisconsin; his right leg being broken near the knee. He brought this action to recover damages for his injuries. He was the only witness. At the close of his testimony the judge directed a verdict in favor of the defendant. The case is brought here by writ of error.

The important question is: Did the judge err in directing a verdict? The mine has 22 levels, about 100 feet apart. Shafts 3 and 4 are about 2,300 feet apart. In the twentieth level, about 1,500 feet east of shaft No. 3, was cross-cut No. 30. About 20 feet below the twentieth level and running parallel with it was a subway, which extended about 20 feet east of cross-cut No. 30, and also about 1,300 feet west of it. In the twentieth level was a heavy door about 20 feet east of cross-cut No. 30, and another one about 120 feet east of the cross-cut.. The twentieth level was about 12 feet wide and 9 feet high. The subway was 9 feet wide and 8 feet high. The men who worked below the twentieth level found their way down through a raise several hundred feet west of crosscut 30. This raise was commencing to cave, and plaintiff was at work making a new raise at cross-cut 30. This raise was in ore. The plaintiff was at work with Tony Snarski. At this time two miners by the name of Rosenberg were mining in the east end of the subway. The plaintiff had worked for defendant 9 years.

The foregoing is a general statement of the situation, and we may now consider the material parts of the testimony of plaintiff:

“They used explosives in the mine (dynamite), which they exploded by means of fuse and the light of a lamp. They bore holes, and after they load those holes up, then they are supposed to notify one another before they blast. The miners used explosives in mining the ore. They have got to blast to loosen the dirt. I have used explosives for about 7 years. I know what should be done in regard to warning people when one or more blasts are about to be set off. When one or more blasts are about to be set off at a certain place, after we have got our holes charged and ready to blast, we are supposed to notify the others that we are going to blast so many holes. I mean we would tell them that the blast was about to occur, and also the number of holes that were going to be blasted. This is the customary way of doing it. The purpose of giving such notice is that we would neither injure one another nor kill one another. The way such notice is usually and customarily given is that one of us stays there, and the other partner goes and notifies the rest that is around there that he is going to blast and there is so many holes. As to how far around the place where the blast is about to occur that the people are notified, sometimes we go as far as 300 or 400 feet, and sometimes as far as 500 feet. I used dynamite myself on the day I was hurt. I blasted five holes in making room for the set which I have mentioned. When I had the five holes charged, the shift boss told us to blast them before the other men that was on the west side came in. If the shift boss hadn’t ordered us to blast, we would have to wait until all of those men passed by. We blasted at the time we were ordered to by the shift boss. When we got orders to blast, we cut the fuse and hollered down. About 20 feet below there was a couple of men work- ' ing there. I hollered myself three times that we were going to blast. My partner went west on the twentieth level into the twenty-fourth cross-cut.
“Q. Where did you go?
“A. There is a door made there for the draft, and I went back of that door, on the east side of the door, which was made of 3-inch plank, and was about 6 inches thick, and was doubled. That was in the twentieth level.
“Q. What did you go over there for?
“A. I went there to see that nobody came back that way. The boss was in that direction; maybe he would turn back, or something like that.
“Q. What did you do after you got there on the east side of that door?
“A. I went there, and I was about 100 feet away from the door, and I waited for the blast. I stood there and I listened, and I heard five of them shots go off. I thought it was the five holes that I had. I asked the rest of the men around there, and they said they weren’t going to blast. I asked them at the noon hour. There was two pipes going down there. One of them was about from 60 to 100 feet long, and the other one was longer. I put in two laggings alongside of those pipes, so that there wouldn’t be any damage before we blasted. Those two men that I asked if they were going to blast were miners. * *
* After I heard those five blasts, I opened the door and went on the other side of the door, from the east to the west. I went there to shut off the wind — the air. The pipes had broke and the air was coming through. All these men were standing west, and the pipes was broke. My partner was there, too, and the people wanted to pass by. These people who wanted to pass by were standing in the twenty-fourth crosscut west of the place where the blast occurred.
“Q. What happened when you went to fix the pipes? '
“A. There was one more explosion from these five holes what I charged and one of the others.
“Q. Where did the other holes explode?
“A. That was 20 feet below me in the first sub. The miners set those off. I .didn’t have any notice or warning that any blasts were going to be set off there. I wouldn’t have gone in there to fix the pipes at that time, if I had had notice that there was going to be blasts down there. The air compressor, which is on the surface, brings that air in there that was in those pipes. * * * ”

Cross-examination (by Mr. Shea):

“I have been working in the mine a good many years — about 8 years; not much in Michigan, for this same company, the Montreal company. During those 8 years I have been a miner in the Montreal mine all of the time. In this Montreal, mine I have spoken about No. 3 shaft, and I say that the place at which I was at work on the morning I was hurt was about 1,500 feet east of shaft No. 3. * * * I set off those blasts at No. 30 cross-cut. That wasn’t a crosscut; it was a raise. * * * I helped to open up the raise all the way from the twenty-first level to the twentieth.
“Q. Were you blasting out the roof of that raise that morning?
“A. I was blasting the same as a cross-cut. I was blasting from the twentieth level towards the raise, on the hanging, north. The drift ran east and west, and I was opening up the cross-cut north. The raise was opened up as high as the twentieth level. It was opened up higher than the floor of the twentieth level above. The raise was about 4 feet from the north side of the twentieth level. We were cutting through that wall about 4 feet thick from the twentieth level to the raise, but the raise is through. * * *
“Q. What did you do during the night?
“A. First, when I got there, there was some dirt to be cleaned up, and we cleaned that up. Then we set our machine there and started to drill holes at the cross-cut. I .started to drill these holes about 11 o’clock, and finished them about 4 o’clock. There were five holes. Two holes were about 2% feet deep (that was all that was necessary), and the others were about 8% or 4 feet. * * *
“Q. What were you doing from 4 o’clock, when you finished drilling the holes, until the time that the shift boss told you to blast?
“A. I took the machine and carried it away, and all the tools that was there I brought them away from the place where we were working, getting ready for the blast. * * *
“Q. And two men were working there in the subway that night?
“A. Yes, sir; their names are Victor Rosenberg and Frank Rosenberg — two brothers. That sub was 20 feet below the twentieth level. * * *
“Q. You say it was customary before setting off a blast to give warning. Did those two men give any. warning that night that they were to set off a blast?
“A. No.
“Q. Why should they give any warning?
“A. Because they should give a warning so that one wouldn’t hurt the other through a blast, or kill one another. There would be danger anybody would be hurt or killed who was in a drift above or below; there is danger. * * *
“Q. How many minutes warning is given before a blast?
“A. At least 5 minutes before he lights the fuse. When the shift boss told us to set off the blast that morning, nobody was present except Tony Snarski and myself. I gave warning that I was going to set off the blast to the men down below in the sub. I gave them warning right where that hole was — crosscut 30. I halloed to them some 5 minutes before we lighted the fuse — fully 5 minutes. We men in the mine always did that.
“Q. All miners know that, even if the shift boss doesn’t tell them, do they not?
“A. Yes; they are supposed to. Miners have been doing that for the last 8 or 9 years, ever since I have worked in the Montreal mine.
' “Q. Anybody would know that it would be very dangerous to set off those blasts without giving warning to the men in that neighborhood?
“A. Yes, sir; everybody is supposed to notify one another. * * *
“Q. And they always did that in the Montreal mine as long as you worked there?
“A. I don’t know whether they all do it or not. So far as I know, and where I worked, they did. What the rest of them did, I couldn’t say. So far as I know, they always did it. But the men in the first sub didn’t do it that morning. They didn’t say nothing. They neglected their duty that morning.
“Q. If they had given you this warning, you would not have been hurt?
“A. No, sir; if I had had warning. I never talked to either of those men about the accident afterwards. The fuses that I used that morning were about 4 feet long. The five fuses were of the same length. I didn’t light them all at the same time. I couldn’t light them all at once, but I lit them one at a time.
“Q. How much time elapsed between the lighting of any two of the fuses ?
“A. Well, it don’t take no time at all. He just cuts his fuse first; he lights one and grabs the other and lights that; he lights one after the other.
“Q. If they were all lighted at the same time, would there be any danger?
“A. No; you couldn’t do it that way, no way, because you wouldn’t know how many blasts would go, if they all went at the same time. We intentionally let a little time elapse between the lighting of any two fuses; the difference would be about 5 minutes in five fuses.
“Q. Do you mean a minute between each two?
“A. Five minutes between them all.
“Q. So that about 5 minutes would elapse between the first blast and the last blast?
“A. No, sir.
“Q. Five minutes between each two shots?
“A. It takes about one minute between five; that is, to light the five. Then they go off in rapid succession, so we can count them easy, one after the other.
“Q. Do two go off at the same time sometimes?
“A. No, sir.
“Q. Is there some difference in the rapidity with which the fuses burn? Will one fuse burn faster than the others sometimes?
“A. We make the fuses all alike when we start, and then when I go to light them I cut them probably half an inch or an inch. I cut them into different lengths, so that when I light the longest one it gives it so much time on the last one, and when I light the last one they all correspond.
“Q. If the fuse is 4 feet in length, how much time elapses between the lighting of the fuse and the explosion?
“A. So far as I understand it, and what the orders are, each foot will last one minute; but they don’t go that.
“Q. You mean that the fuse burns faster than that?
“A. Yes; sometimes they do, a little bit faster than that. This morning, when we lighted the fuses, Tony Snarski went west and I went east back of the door. * * * I closed both doors as I passed east, and then I was about 150 feet from the cross-cut, and I stood there waiting for the explosions, and I counted five explosions. There was an air pipe in the drift, and the air was escaping from this pipe. * * * The pipe was broken at the cross-cut. I could tell the pipe was broken as I stood behind this door awaiting the explosions. It is easy telling, because the escape of the wind makes a great noise. I heard the sound. í{« ^ #
“Q. You didn’t know at what point in the air pipe the break occurred?
“A. I knew it was in the drift where I blasted. The pipe was right in the center of the main drift, above. After the five explosions, and when I got my light, I started back to find out where the pipe was broken. I went back to see what pipe busted, and in going back I was hurt. On the way going back to see, I was hurt.
“Q. Where were you when you were hurt? * * *
“A. I went through both doors. I just got through the first door from where I blasted, and that is where I got hurt. I was about 50 feet east of cross-cut 30 when I got hurt.
“Q. Were you examining that pipe overhead?
“A. Yes; the height of that pipe from the floor was about 6 feet. My height is over 5 feet, something like that; about 5 feet 6 or 7 inches. I didn’t have a light in my hand examining the pipe as I went west. I had my light in my hat, as they always carry it. I just opened the door and got through it.
“Q. Explain to the jury how you were examining the pipe.
“A. Just as I opened the door and wanted to start off, I was hurt. I didn’t discover where the air was escaping from the pipe, because I was knocked down. sfc #
“Q. About how long was it from the last explosion to the time you were hurt?
“A. I would judge it took 4 or 5 minutes before I lit my lamp and got down that far. The smoke usually clears away as rapidly as that. When they blast holes, and they get a draft, it clears in no time.
“Q. What did you expect to do upon reaching the place where the pipe was broken?
“A. I had to go to see, and stop or turn off that air; shut off the air. * * * At the time I was injured it was my intention to go to cross-cut 24 and shut off the air in that pipe. I understood there were several men west of cross-cut 30 in the twentieth level at that time. I understood that Tony Snarski went back to cross-cut 24. This pipe was closer by.
“Q Couldn’t he have turned off the air much more readily than you?
“A. I don’t know whether he heard it. He was standing farther away from me. I don’t know that the men at cross-cut 24 could have heard the air escaping from the pipe at cross-cut 30. They may have heard it, and maybe they didn’t. * * * The two Rosenbergs were mining there, working with a machine, at that time. I heard some explosions in that sub about midnight that night; before dinner; before midnight. I don’t know how many blasts were set off in that sub before midnight. I didn’t count them, but they didn’t go over eight or nine holes; I mean eight or nine holes at one blast.
“Q. Were several blasts set off in the sub before midnight?
“A. I didn’t count them. I don’t know whether or not there were several blasts set off in that sub before midnight. I didn’t count nobody’s holes. There was no blasting done in any other place near us that night before midnight; not close by. I heard the sound of an explosion after midnight, but it was far away; not just one blast; more than one; because the Montreal blasts probably every minute. I couldn’t hear all the blasts where I was in the twentieth level, because I was working here, and they were far away. I heard blasts after midnight that night up to the time we set off our charges.
“Q. If you were in the twentieth level, could you tell whether a blast, the report of which you heard, was set off in the sub or on the level?
“A. Yes; I could tell. I could tell by the sound.
“Q. Could any miner — any man who had had any experience in mining — distinguish between an explosion in the sub and an explosion at cross-cut 30 on the level if he were standing on the level at cross-cut 30 ?
“A. Yes; a miner working in the mine he had ought to.
“Q. Suppose a man stood at the second door as you go east from cross-cut 30, and a blast was set off in the sub, and suppose another blast a few minutes later was set off in the cross-cut; if he were still standing at this door, how could he tell which blast took place in the sub and which in the level or drift?
“A. In a place like I worked, and those two men below, you couldn’t tell much difference, because that hole takes the sound.
“Q You mean the hole at cross-cut 30?
“A. Yes; so it makes pretty near the same sound. There ain’t no difference. You could not tell the difference in that case. I couldn’t tell the difference between my holes that I blasted and his.”

Defendant moved for direction of a verdict on substantially the following grounds:

(1) Want of evidence of negligence on defendant’s part.

(2) The Rosenbergs and plaintiff were fellow-servants, and their failure to give warning was fellow-servants’ negligence.

(3) Plaintiff assumed the risk.

(4) Contributory negligence.

It is argued very strenuously that none of the reasons given in the motion for a directed verdict existed in this case. Taking plaintiff’s version of the affair, we have the following situation: The plaintiff is a miner with eight or nine years’ experience handling the dangerous explosive known as dynamite. He and his partner .are at work just above two miners who are at work in ore, who also use dynamite to blast. It is understood by all of them that before a blast is made notice shall be given by hallooing to those likely to be affected. The plaintiff and his partner drilled the holes and put in the dynamite; the plaintiff preparing the fuses and then sending his partner to give the warning. He then lights the fuses and retreats ,to a place of safety. He hears explosions and counts them. He then assumes all of the charges he has prepared have gone off, and goes from a place of safety to a place of danger, when one of the charges of dynamite he has himself prepared, and to which he has attached a fuse for the purpose of exploding it, explodes, and lie is hurt as the result of that explosion. Who contributed to this injury? Is it the defendant, who has instructed all the miners they must not set off a blast without warning, or is it the man who prepared the charge and attached the fuse and did not wait in a place of safety before going into a place of danger long enough to allow the fuse, which he had himself prepared, to do its work? When the facts are stated, such a situation is shown that the conclusion is irresistible that the conduct of plaintiff was not that of a reasonably prudent man; but it was conduct without which the accident could not have happened.

It will not be necessary to argue the other reasons for directing a verdict.

Judgment is affirmed.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    SEEBACH v. MICHIGAN UNITED RAILWAYS CO.
    1. Street Railways — Negligence—Operation of Cars.
    Evidence that plaintiff’s wagon was struck by defendant’s car as plaintiff attempted to turn around, that he saw the car nearly 600 feet away when he started to drive on the track, and believed that he had time to make the turn, but was delayed somewhat by the size of his load and by the sliding of his wheel on the rail, that the car ran 195 feet after it struck plaintiff’s wagon and the motorman saw that plaintiff could not get out of the way, at a point 200 feet from the place of the accident, testimony being also introduced to show that the car could be stopped in less than 80 feet if it was not exceeding a speed of eight miles an hour, warranted the submission to the jury of the question whether defendant was negligent.

    2. Same — Contributory Negligence — Personal Injuries.
    It could not be said, as a matter of law, that plaintiff was guilty of contributory negligence: for a person is not chargeable with want of care, as matter of law, if he has reasonable ground, in the exercise of ordinary diligence, to believe that he can cross the track safely. Nor was the verdict contrary to the weight of the evidence.
    3. Trial — Conduct of Cross-Examination.
    Any error that the trial court may have committed in refusing to permit defendant’s counsel to cross-examine the motorman who operated defendant’s car, offered by plaintiff for examination as defendant’s agent or servant, under Act No. 307, Pub. Acts 1909 (5 How. Stat. [2d Ed.] § 12865), was cured or made harmless by t]ie fact that answers to the questions were later elicited from the witness: the proposed cross-examination was proper in behalf of defendant.
    Error to JacksonParkinson, J.
    Submitted October 18, 1912.
    (Docket No. 157.)
    Decided September 30, 1913.
    Rehearing denied November 3, 1913.
    Case by Fred H. Seebach against the Michigan United Railways for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Sanford W. Ladd, for appellant.

      Thomas M. Poynton, for appellee.

       On the question of injuries by street car collisions with vehicles or horses, generally, see note in 25 L. R. A. 508.

   Bird, J.

When plaintiff received the injuries complained of in this suit, he was driving in a one-horse wagon in an easterly direction on East Main street in the city of Jackson. The defendant’s track occupies the center of the street, and the plaintiff was driving between the track and the south curb, which is 16 feet. To avoid an automobile which was standing in front of a residence, he turned out to go around it, and in so doing drove his left wheels on the track. Before he could circle around the automobile and get clear of the track, his wagon was struck by a westbound car, and he was thrown out and badly injured. It appears that the cars operated on East Main street go as far east as Horton street, where they turn around by going onto a Y on Horton street. Before driving onto the track, plaintiff looked in both directions and saw the car in question at Horton street, 595 feet to the east, and concluded that he had time to go around the automobile before the arrival of the car. He was delayed somewhat by the fact that his wagon had a long reach and was heavily loaded, which made it necessary to make a larger circle than would have been necessary with a shorter reach. In leaving the track, his left front wheel was slow in mounting the rail, which also added to the delay in clearing the track.

- The plaintiff recovered a judgment in the trial court, and the defendant assigns a large number of errors, the gist of which is that the testimony does not show that the defendant was negligent, and because the testimony does show that the plaintiff was guilty of contributory negligence.

The negligence with which defendant was charged was its failure to exercise reasonable care and caution in the operation and management of the car so as to avoid colliding with plaintiff’s wagon. To establish this allegation, the plaintiff showed that, when the car started on its return trip at Horton street, it was late, and that the motorman was told by the crew on the car following him “to go right down through, without stopping to pick up passengers, as they would do thatthat the car started and made no stop until after the collision. One witness testified from his observation that the speed of the car was. not slackened until the collision took place, and another one testified that the car seemed to be going faster after the collision than before. After the collision the car ran 195 feet before it was stopped, and it was shown in connection with this that the car, under the weather conditions existing on the night in question, could have been stopped in about 70 or 80 feet, if going only 8 miles an hour, as claimed by the motorman. The motorman admitted that the street was sufficiently lighted to enable him to see the automobile while he was at Horton street. Later he saw plaintiff drive onto the track, and at Forbes street, while approximately 200 feet away, he concluded plaintiff was not going to get off the track before the car reached him. It was contended by the motorman that, when he saw that plaintff was not likely to get out of the way, he turned off his power, applied the brakes, and reversed Ms car; but by reason of the dampness of the rail, he was unable to stop. The inference is very strong that the motorman was acting upon the suggestion of the crew following him in order to regain his schedule time, and that he indulged the presumption that plaintiff would clear the track by the time he reached there so long that he was unable to stop. If such were the case, the defendant was negligent, and the question as to whether the motorman operated and managed his car in a reasonably prudent manner, in view of the situation as it existed, was a fair question to be determined by the jury.

Was plaintiff guilty of contributory negligence? We do not think it can be said, as a matter of law, that a driver upon the highway, who turns out to avoid an obstruction in his way, and in so doing drives onto the track, when he sees an approaching car 595 feet away, is guilty of contributory negligence. The contributory negligence of the plaintiff was a question of fact for the determination of the jury, and came clearly within the line of cases which hold that—

“Where, in the exercise of1' common prudence, a person may reasonably think there is time to cross a street railway safely, he is not chargeable with negligence in attempting it.” [Chauvin v. Railway, 135 Mich. 85 (97 N. W. 160)].

Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278); Chauvin v. Railway, supra; Gaffka v. Railway, 143 Mich. 456 (106 N. W. 1121); La Londe v. Traction Co., 145 Mich. 77 (108 N. W. 365); McQuisten v. Railway Co., 147 Mich. 67 (110 N. W. 118); Deneen v. Railway Co., 150 Mich. 235 (113 N. W. 1126, 13 Am. & Eng. Ann. Cas. 134).

The claim is made by defendant that the verdict was against the weight of the evidence. We cannot agree with counsel in this contention. The testimony on behalf of plaintiff was sufficient, if believed by the jury, to justify them in returning a verdict for him.

The motorman was called by the plaintiff under the statute (Act No. 307, Pub. Acts 1909), and was cross-examined. Defendant then insisted upon his right to cross-examine the witness; the plaintiff objected, and the court ruled that:

“I realize the defendant in this case cannot cross-examine this witness, as the term ‘cross-examine’ is understood by the profession; but I think that the defense ought to have an opportunity to ask this witness such further questions as would leave the testimony of the witness in complete condition, and I will so rule, trusting counsel will not forget he is not cross-examining the witness.”

Following this ruling, several questions were objected to by the plaintiff and sustained by the court; but in each instance the answer to the question was later elicited from the witness, and therefore we think no harm resulted to the defendant’s case by reason of the erroneous ruling. The cases of Jones v. Railroad Co., 168 Mich. 1 (133 N. W. 993), and Johnson v. Carbide Co., 169 Mich. 651 (135 N. W. 1069), settle the question affirmatively, that the cross-examination offered was proper.

Further complaint is made with reference to the reception of certain testimony offered by the plaintiff. We have examined the objections thereto, but find no error in the rulings of the court admitting them. We are also of the opinion that the objections made to the sufficiency of the declaration are without merit.

The judgment of the trial court is affirmed.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred.


author: Steere, C. J.

text:
    FOLKS v. BURLETSON.
    1. Partnership — Evidence ' of Existence — Holding Out — Estoppel.
    Testimony tending to show the establishment of a private bank by several defendants, who were held out in advertisements and statements made as partners in the concern, and testimony tending to show that they were engaged in the attempt to organize several private banks with another incorporated bank in which they were interested as a center, held, to sustain a verdict for plaintiff against the members of the alleged partnership, on. the theory that defendants permitted themselves to be held out to the public as partners in the private banking firm.
    2. Same — Misrepresentation.
    As applied to partners, such holding out is fundamentally predicated on the general principle of estoppel by conduct, but comprehends, also, indirect misrepresentation and signifies that the purported partners have, by language and conduct, represented themselves, or knowingly have suffered others to represent them at large, as partners in such manner and to such an extent as to lead the public to believe that they are partners in fact.
    3. Same — Authority to Represent — Fraud.
    It is not necessary to show express authority to hold out a person as member of the firm; authority may be inferred from defendant’s conduct. If he has, by signing prospectuses, or by being party to resolutions, or by statements made, or has in any other way so conducted himself as, in fact, to have authorized the holding out, he is liable.
    4. Same — Evidence—Memrers of Firm.
    It was not error to admit in evidence an advertisement relating to a State bank in a neighboring town, wherein the defendants were mentioned by name as officers, directors and stockholders, followed by a statement that they were back of the private bank in question, representing a responsibility of about $300,000.

      5. Same — Hearsay.
    Nor was it error to admit statements made by persons employed and placed in charge of the bank that defendants or some of them were running the private bank; the rule that an agent’s authority cannot be proved by his own declaration was not violated thereby.
    6. Same — Evidence—Testimony of Partner’s Admissions.
    Where one of the defendants admitted his liability, after he had pleaded the general issue and did not suffer default to be entered against him, his representations, not made in the presence of the remaining defendants, and supported by his testimony showing copartnership relations, were properly received in evidence to establish the connection of defendants with the bank: and any possible error was cured by the action of the court in charging the jury that this evidence should not be considered.
    7. Same — Trial—Charge—Estoppel.
    The court did not in anywise prejudice defendants by instructing the jury that a person who holds himself out as a partner of a firm is estopped to deny the representations as to the persons to whom the statements were made and as to others who acted in reliance on them, that reliance on mere rumor or hearsay would not be reasonable diligence, unless there was actual holding out to the public, that defendants' denial of any knowledge of such representations or statements should be a defense, unless the greater weight of the evidence established the contrary, that if there was a general holding out to the public by one or more of the defendants as members of a partnership or joint venture, depositors of the bank who relied thereon could recover: any possible error in such charge was in favor of the defendants as to the distinction between liability by holding out and liability by estoppel.
    8. Same.
    The fact that a creditor relied on mere hearsay or rumor would not preclude him from recovering if he could establish by proof of facts and circumstances a holding out of defendants as members of the firm.
    9. Same.
    Evidence that defendants suffered themselves to be held out as partners in the bank, and in fact associated together under an agreement to share the profits, although defendants denied the claim, warranted the trial court in finding that the verdict was not contrary to the weight of the evidence.
    10. Same.
    All that is generally required to constitute a partnership as between the parties is that there should be an agreement to share in the profits and losses; and even less than this may make them responsible as between themselves and third parties.
    Error to Jackson; Parkinson, J.
    Submitted November 11, 1912.
    (Docket No. 143.)
    Decided September 30, 1913.
    Rehearing denied November 3, 1913.
    Assumpsit by Alfred Folks against William H. Burletson, Gardner L. Hunn, Albert M. Helmer, Charles W. Bullen, and Fennor K. Corwin for certain debts or claims owing by the Farmers’ & Merchants’ Bank of Hanover, Michigan, a copartnership. Judgment for plaintiff. Defendants except said Burletson bring error.
    Affirmed.

      Thomas E. Barkworth and George E. Nichols, for appellants..

      Price & Whiting and Benjamin Williams, for appellee.
   Steere, C. J.

This was an action in assumpsit brought in the circuit court of' Jackson county, by plaintiff in his own behalf and as assignee, for the purposes of this case, of over 100 codepositors and creditors of the Hanover Bank of Hanover, Mich., a financial institution which had previously closed its doors and its brief but checkered career, with the help of a receiver appointed by the court. Plaintiff recovered from defendants a judgment, for claims which he held as a primary indebtedness of said bank, on the ground that defendants were also liable for the same by reason of their relations with that institution.

The declaration, filed and served in the case, was upon the common counts in assumpsit, also alleging that the indebtedness sought to be recovered arose to plaintiff and his assignors in amounts and manner as indicated in his bill of particulars attached to and made a part of the declaration, further stating that on the trial plaintiff would produce and give in evidence, under the money counts, certain certificates of deposit, copies of which were set out at length.

Defendants pleaded the general issue, with an affidavit attached denying execution of the instruments of indebtedness, of which notice was given. This affidavit is upon information and belief, which counsel for plaintiff contend is insufficient under Circuit Court Rule 8, and urge that the genuineness of the instruments therefore stands admitted under numerous authorities cited. In view of admissions found in the record and the general course of contention developed on the trial, we regard this question of but minor importance here. On the trial defendant’s, counsel, without directly admitting, did not seriously, or at least convincingly, contest the various claims and items of indebtedness offered and proven against the bank, but did strenuously object to and contend against them as tending to establish any liability on the part of defendants. The assignments of these claims to plaintiff were admitted on the trial. On that branch of the case, without going into details, we think it sufficient to state that in our opinion plaintiff’s proofs were ample to establish against the bank, and without error so far as it was concerned, an indebtedness amounting to the sum’ for which judgment was recovered.

The really important issues of fact and law, to which most of the evidence and efforts of counsel were directed, are the relations which the various defendants bore to the bank, and the interest they had in it, and whether or not, as a consequence, they became liable' for its indebtedness.

The testimony, as it runs, associates, more or less closely, the “Farmers’ & Merchants’ Bank, Unincorporated, of Hanover,” and the “Farmers’ & Merchants’ State Bank of Parma,” which took their names from, and were respectively located in, two villages of Jackson county, Mich., situated about 14 miles distant from each other; the two concerns being commonly referred to in the record as the “Hanover Bank” and the “Parma Bank.” Defendant Burletson was their chief promoter and organizer and guided their destinies until their doors were closed, which occurred on the same date, in September, 1908. He became an important witness for plaintiff and did not join the other four defendants in their appeal to this court. The judgment was against all five defendants.

Some three or four years before the complications which resulted in this litigation arose, Burletson, having associated with him one D. H. Powers, who resided in Pontiac, Mich., opened a bank in Parma called “the Bank of Parma,” which was run as a private bank until April, 1907, when the “Farmers’ & Merchants’ State Bank of Parma” was organized and incorporated under the State banking laws to take over and continue the businéss of the Bank of Parma. It was capitalized at $20,000, and the five defendants, all residents of Parma, constituted its first board of directors; Burletson being chosen cashier, Bullen president, and Hunn vice president. In the meantime, early in February, 1907, Burletson had widened his field of financial activities by starting the Hanover bank. It was “considered as a proposition” in connection with the organization of the Parma State Bank, and later when the Parma bank was incorporated, in April, he interested and to some extent, the nature of which is in question, associated with himself in the Hanover enterprise defendants Bullen, Hunn, Corwin, and Helmer, his fellow directors in the Parma bank.- He testifies:

“At about the time the organization of the State Bank of Parma was shaping itself, Mr. Hunn approached me and he said it would be necessary for me to include the bank at Hanover in the organization. This was against my will at the time for I had made different arrangements; that is, I had planned differently than that. But it was finally conceded and all of the directors — in accordance with that arrangement-all of the directors went over to Hanover and looked the situation over and there decided on a lot and the price to be paid for a lot. * * * There was a building constructed subsequently on the land which the directors of the Parma bank got at Hanover, which cost approximately $1,500. We bought furniture, a screw door safe, and a vault door and equipped the office for the banking business. The name we assumed for the bank at Hanover was Farmers’ & Merchants’ Bank.”

It is undisputed that a lot was purchased in Hanover about the time stated; that all of the defendants drove over from Parma together on the day the lot was selected; that a banking building was erected upon it, equipped as testified, and the Farmers’ & Merchants’ Bank of Hanover was then opened and there run until its end, during most of which time George Hunn, son of defendant Hunn, was in immediate charge of the bank as assistant cashier. On March 15, 1907, the following advertisement was published in the Hanover Local:

Farmers’ and Merchants’ State Bank of Parma Will Complete Its Organization April 1, 1907, under General Banking Laws of the State of Michigan.
Capital Stock Paid in $20,000.
Stockholders.
[Giving a list of names which included defendants.] Board of Directors.
C. W. Bullen, G. L. Hunn, W. H. Burletson, Albert Helmer, F. K. Corwin, D. H. Power.
Advisory Board.
S. H. Godfrey, Walter Hobbins, Albert Helmer.
All of which are back of the Farmers’ & Merchants’ Bank of Hanover, representing a responsibility of close on to $300,000. Every favor granted consistent with conservative banking. Depositors and friends will always receive courteous attention.
Officers.
C. W. Bullen, President; G. L. Hunn, Vice President;
W. H. Burletson, Cashier;
F. K. Corwin, Chairman Board of Directors.
Four Per Cent, on Savings Deposits.

The usual stationery of various kinds was prepared and forms printed with the name of the bank upon them; the letterheads reading as follows:

C. W. Bullen, Pres. G. L. Hunn, Vice Pres.
W. H. Burletson, Cashier. Geo. W. Hunn, Ass’t Cashier.
Farmers’ & Merchants’ Bank,
Hanover, Mich.

The above advertisement ran in the local newspaper for several weeks and the letterheads were regularly used in the business of the bank.

It was contended in behalf of plaintiff that the evidence warranted a verdict in his favor on any one of three theories, as the jury might find the facts to be: Either that defendants were shown to have been partners in fact between themselves as well as to all others, within the full meaning of that term; or that they were partners in legal effect as to third parties by reason of having been associated together in running the bank under such circumstances as constituted a general holding out that they were its owners and officers, responsible for it and back of it; or that they were estopped from denying a partnership owing to representations which they individually made or authorized. To some extent the same principles are involved in the last two propositions, but in the last one they apply more properly to defendants, and the claims against them, considered in their personal relations with creditors.

Plaintiff conceded on the trial that his proofs of estoppel did not apply to all the claims upon which he sought to recover, furnishing in that connection a distinguishing statement to the court and jury: The verdict and judgment were for $17,582.95, the full amount of his claim. It is therefore evident, under the concessions of counsel and charge of the court upon that subject, that the jury must have found, and rendered their verdict on the theory, that defendants were, as to creditors of the bank, partners, which eliminates from the case the distinct question of estoppel.

The record contains many assignments of error too numerous and interlacing to review them all separately and in detail, but, generally stated, under them it is contended that questions of fact submitted to the jury were not properly submitted under the circumstances of the case nor sustained by the evidence, and! that certain testimony was erroneously admitted for the jury to take into consideration in arriving at their verdict.

It is first earnestly urged that the court erred in overruling defendant’s motion for a directed verdict in their favor on the ground that there was no evidence from which an agreement of partnership could be found nor upon which a general holding out by defendants to the public of a partnership could be predicated.

The undisputed facts already detailed would, in the absence of explanation or denial, naturally lead to the inference that defendants were associated together in the Hanover enterprise and responsible for its management. But it is claimed by the four appealing defendants that all those things which might tend to implicate them were done and the bank was owned and run by defendant Burletson, without their participation or consent and for the most part without their knowledge; and that there is no competent evidence tending to show either a partnership in fact or that the things done and representations made by Burletson tending to show a holding out as partners were authorized or acquiesced in by them.

We think there is testimony in this case tending to show that these defendants, already interested together in the organization and management of the Parma bank, and yet more closely associated together as its directors, sought to further extend their banking interests by together purchasing and taking over the Hanover bank, designing to run the same in connection with or under the auspices of the Parma bank and to share the profits of the Hanover bank between themselves. Losses do not seem to have been discussed and apparently were not anticipated. It is Burletson’s testimony, which is in harmony with other confirmatory circumstances in the case, that a project was mooted and favorably considered by defendants when organizing the Parma bank to develop a financial center under their control and for their profit by establishing a chain of small banks in surrounding territory auxiliary to the Parma bank. Burletson had already started the private bank at Hanover and at least one other bank of like nature at Pittsford. The purchase of the Hanover bank was in line with such a project. No capital appears to have been invested in the Hanover bank. Its assets consisted of its deposits, out of which its building was erected and furnished. For a time the method of running the two banks resulted in an intermingling of bookkeeping, exchange, debits, credits, and accounts generally which, upon coming to the knowledge of the State banking.department, was forbidden by it.

Burletson testifies in regard to the plans and agreement of defendants:

“This bank at Hanover was to be operated as sort of a branch bank, a branch of the Parma bank. I knew we could not operate the bank as a branch, but I do know we could use it as a sort of an annex. That matter was discussed among the directors and myself. They talked in directors’ meetings at Parma and discussed it in general — the matter of the construction of the building at Hanover. * * * The bank at Hanover was to .be generally directed by the bank at Parma, or its directors. The earnings, if any, were to go toward the expenses of the bank at Parma, * * * and it was thought by the board of directors collectively that the expenses of the Hanover bank would entirely — the earnings of the Hanover bank would entirely liquidate the expenses of the State Bank at Parma, leaving the entire earnings of the bank at Parma wholly and clearly for the stockholders and directors. I asked the board of directors if it was their wish to include all the stockholders in this arrangement, all the stockholders of the Parma bank, and it was decided not to do so, but to have the earnings of the bank apply only to the proportionate holdings of the stock by the directors in the Parma bank; * * * I mean the directors of the Parma bank were to share in the profits of the Hanover bank in proportion to their stock in the Parma bank.”

This record shows that the five defendants practically owned the Parma bank, the holdings of other stockholders being comparatively small, and the incidental benefit coming to them from the application of profits to the Hanover bank towards paying the expenses of the Parma bank would be slight and fairly offset by the time devoted by Burletson to the affairs of the Hanover bank while he was under pay of the Parma bank as its cashier. Burletson further testifies:

“This matter of the division of the profits,. if any, of the Hanover bank, was discussed at directors’ meetings of the Parma bank directors. All of us were present. It occurred at more than one directors’ meeting. It was talked several times, discussed, and generally understood. All of the directors understood it. Furthermore, at the time this Hanover hank was coming into play, it was thought a pretty good plan to have several little banks around the country, and I went so far as to get a list of the stockholders of the Concord bank, thinking perhaps we might be able to get hold of that. Mr. Corwin (one of the defendants) furnished me a list of the individuals who held stock in the Concord bank. * * * They all had knowledge of just how we were constructing the building and carrying on our business over there at Hanover and understood it. * * * From that time on, until the Hanover bank was closed, the bank at Parma ran it. I mean by the bank at Parma the officers and directors of the bank at Parma, of the Farmers’ & Merchants’ State Bank, * * * defendants named in this case. * * * In fact, there was no question ever raised in reference to the ownership of that bank up to the day the bank at Parma closed. * * * ”

Speaking of the advertisement published in the Hanover paper, he says:

“I put the advertisement there. I could not tell you who made the arrangement with the printer or editor. It might have been myself. * * * I don’t remember whether any one was with me when I made the arrangements for that ad. This much I do know: A copy of that paper was taken to Parma and laid on the counter at Parma where all the people who came in there could look at it. They all saw it. The directors of the Parma bank saw it; every one of them saw it.”

While the witness did not remember that any one was with him when he made arrangements for the advertisement, Clyde E. Hall, the editor and printer of the paper, testifies positively that defendant Hunn was present and assisted in making the arrangements. Being shown a copy of the advertisement, he identified the same and testified in part as follows:

“Mr. Burletson and Mr. Hunn came to my office together and gave me the copy and both read the copy over with me. I also remember asking Mr. Hunn about the spelling of his name as it appeared on the copy. They both further stated that they were both there in the interest of the bank for Hanover. I also left my office and assisted them in interesting the business men of the village in the project.”

Whether it was the intention to incorporate the bank of Hanover is not shown. Burletson testified that at a meeting of the dirctors of the Parma bank they elected as officers of the Hanover bank the same persons whose names appear in the advertisement, who held the same positions in the Parma bank, and says:

“It was not necessary for the persons who were interested in the Hanover bank to choose their officers as such. The officers who were officers in Parma were officers in Hanover. That was all there was to it. * * * The other directors knew this stationery was being ordered for the use of the Hanover bank. They knew about everything — the whole business. The whole matter was discussed in our directors’ meetings.”

On re-direct examination by plaintiff’s counsel he was asked and answered as follows:

“Q. Did the directors of the Parma bank, these defendants here, understand they were taking money which was deposited in their bank in the name of the Hanover bank to build the bank building' at Hanover?
“A. Yes, sir. * * * I know they understood that because Mr, Corwin asked me that question and I told him where it was coming from. The rest of them all knew it from general discussion of matters in board of directors’ meetings, individual conversation that took place, and so on. Mr. Hunn and I spent a half day going to Horton looking towards interesting the Horton people in a bank.”

The record also discloses much testimony by numerous witnesses, mostly customers of the bank and residents in and around Hanover, of an active interest shown by some of the defendants in the bank to the extent of soliciting patronage for it, giving assurances of its reliability, stating or admitting that they and the other defendants were running it and back of it, and of the introduction to the witnesses of others as connected with and officers of the bank, without denial on their part. Several witnesses testify with greater or less certainty to being introduced to defendants by Burletson as the parties who were about to start a bank at Hanover, when they were there together, apparently on the day when a lot was secured as a site for the bank building. Some witnesses identified all the defendants, others only certain ones.

Albert Sanderson, a merchant of Hanover, said:

“I remember the occasion of the Hanover bank being started. * * * I think it was on the 15th of April. It occurred in my store. Mr. Culbert was standing near me. Mr. Burletson came in with Mr. Hunn and four other gentlemen, Mr. Hunn and Mr. Bullen, Mr. Helmer and Corwin. I am positive there were four besides Mr. Burletson. When they first opened the bank at Hanover I was doing business at that time with the Union Bank in Jackson. They tried to get me to do business, and I explainéd to them why I didn’t. They said they could give me a statement that satisfied me they would be all right. After they got started, not at that time, but a month or so after that, I commenced to do business with the bank after I was satisfied what they told me was correct.”

William Folks testified in part:

“I am a farmer. I am a brother of the plaintiff in this suit. I am pretty well acquainted with three of the defendants in this case, Mr. Hunn, Mr. Bullen, and Mr. Burletson. About the middle of April I met Mr. Burletson there in Hanover with four other gentlemen up there «from Parma, Mr. Hunn, Mr. Bullen, and as I remember the other two, it was Mr. Corwin and Mr. Helmer. At that time we had a conversation relative to the bank on the ground the bank now stands on. Mr. Burletson introduced me to these other four members as directors and officers of the Hanover and Parma banks. Mr. Hunn says: ‘We are going to put up a building here and get more money so you can have all the money you want to buy stock with.’ ”

William Burdett said:

“Mr. Burletson came over to the elevator where I buy grain and brought four men and introduced them to me as directors of the Parma bank, and he said they were the men who would be back of the Hanover bank; they were looking for our business. In our business we pay out from $40,000 to $50,000 á year for grain. Two of the men that Mr. Burletson brought there were Mr. Bullen and Mr. Hunn. I can remember Mr. Hunn and Mr. Bullen, but the other two men, I don’t think I ever met them before or since. I would not know them if I saw them again. I would know Mr. Hunn right there, but I would not know the other men. * * * They got our business within three days of the time they were there.”

In passing upon the question of directing a verdict for defendants, the testimony on the part of plaintiff is to be taken at its strongest. So regarded, we think there was evidence to go to the jury, both on the issues of a partnership in fact inter se and a partnership as to third parties by a holding out.

A holding out, as the term is used when applied to partnership, while fundamentally predicated on the general principle of estoppel by conduct, comprehends indirect misrepresentation also and signifies that the purported partners have by language and conduct represented themselves or knowingly have authorized or suffered others to represent them at large as partners in such manner and to such an extent as to lead the public generally to believe that they are partners in fact.

When such a holding out is once established, not by proof of mere reputation but by proof of pertinent and convincing facts and circumstances, the parties so implicated become liable to one thus induced to give credit, not on the ground of any direct representations or dealings between the parties, but upon the principle of a general policy to prevent fraud and imposition to which creditors in the business world would otherwise be liable. On this subject it has been said:

“The most difficult cases of this class occur where the defendant has not held himself out, but where he has been held out by others, and he alleges that they had no authority to do so. Express authority is not necessary; authority may be inferred from his conduct; and if a person has by signing prospectuses or allowing his name to be put to them, or by being party to resolutions, or by his own statements, though not intended to be repeated, or has in any other way so conducted himself as in fact to have authorized the holding out which he repudiates, he will not escape liability.” Lindley on Partnership (1905), p. 72.

Error is assigned on admission of the advertisement in the Hanover Local, heretofore set out. Counsel say that this notice “had no tendency to show the relation of partnership by estoppel, nor could it be used as an admission of the existence of a partnership in fact,” citing Bennett v. Dean, 35 Mich. 306; s. c., 41 Mich. 472 (2 N. W. 680). In that case plaintiff sued defendants as copartners under the name of the “National Savings Bank of Jackson, Mich.;” one of the defendants having advertised the other two defendants as directors in a bank of that name and started business, receiving some deposits, though there was in fact no such bank. The court held that the two defendants were not estopped from denying that they were partners. The court said that the printed notices relied on did not import the existence of a partnership or any connection by the two defendants involving the liabilities of such relation, but did suggest the existence of an incorporated bank and tended to negative a personal liability. In this case, while notice is given of an intention to incorporate a bank of $20,000 capital at Parma, it goes much further and states in effect that the proposed officers named are also interested in and together backing the private bank at Hanover, in which village the notice was published, and personally liable, “representing a responsibility of close on to $300,000.” We think the cases distinguishable and the notice admitted in this case competent evidence.

Testimony was admitted under objection of statements made by George Hunn and Melvin Carey relative to who was running the Hanover bank, each of whom at different times was in immediate charge of the bank and conducting its business with the public. While so employed they told parties making inquiry, and also certain persons whose business they solicited, that the bank was sound financially, being backed and run by the directors of the Parma bank, at times naming part or all-of the defendants. Exception is taken to this line of testimony as immaterial and hearsay; the statements not being a part of the res gestae because they did not accompany an act performed under an agency^ and were in violation of the rule that the declaration of an agent is not admissible for the purpose of proving his authority. Counsel correctly state that the only possible relevancy of this testimony must be to show a connection of defendants or some of them with the Hanover bank, but we do not think it follows that “they are clearly within the prohibition of the rule that an agent’s authority cannot be proven by his own declaration.” There is testimony in the case that these men were hired with the knowledge and by express authority of defendants and put in charge of the bank to represent it in dealing with the public. The scope of their employment would naturally comprehend furnishing such information as is usually desired by actual or prospective customers. The information they gave came to them in the course of their employment and was the same as had already been promulgated by an advertisement in the public press. Whether or not these representations were authorized by defendants is a question of fact in the case. In soliciting customers for the bank, a discussion of the financial responsibility of the institution and its backers could well be considered part of the res gestae of such transaction. The testimony objected to contains no assertion on the part of Hunn and Carey that they were agents of defendants and had authority from them to make such representations. If their authority was not otherwise shown, the testimony would be inadmissible.

The court in instructing the jury upon that subject said:

“Testimony by depositors has been admitted as to statements made by them (that is, Carey and Hunn) to induce them to deposit there and while doing business at the bank. * * * This testimony as to such statements by Carey or George Hunn should not be considered by you unless you find from the other evidence, aside from their statements, that as regards George Hunn and Carey they were employed by the defendants, or those who may be found to have constituted the partnership or have been jointly interested, if any there were, and were at Hanover by virtue of that employment, doing the business of the defendants. * * * George Hunn could not, neither could Carey, make statements affecting those of the defendants who did not employ them or to whom George Hunn and Carey were not agents or representatives in the business of the bank. * * * ”

Error is assigned and urged on refusal of the court to grant defendants’ motion “to strike out all testimony of interviews with Burletson not in the presence of one or more of the other defendants.” This motion was made at the conclusion of plaintiff’s testimony and was then overruled. The objection is based on the case of Scholtz v. Freud, 128 Mich. 72 (87 N. W. 130), wherein the rule is laid down, as quoted from the syllabus:

“Where two persons were sued as partners, and one of them defaulted, his statements, tending to show the existence of a partnership, should have been excluded.”

In that case the court said:

“McKinney was a defendant, who had permitted his default to be entered. He thereby admitted his liability, and the amount of damages only was to be determined. See 1 Green, Prac. 460. There was therefore no occasion to show the statements of McKinney, and they should have been excluded. As the court told the jury, such statements were not binding upon Freud.”

Technically and as, a matter of pleading the situation is not.the same here. Burletson did not permit his default to be entered. He entered his appearance and pleaded the general issue. He testified at the trial. If default is the antithesis of appearance, he was not in a legal sense in default. It is true that at the trial he gave testimony tending to support plaintiff’s contention, and judgment was entered against him with the rest. But irrespective of this question, conceding that the testimony was inadmissible, the court did ultimately, in effect, grant defendants’ motion and said to the jury in charging them:

“The defendant Burletson is practically in default in this case. By such default, as the record now stands, he practically admits his liability. Therefore, any statements made by him, not in the presence and hearing of any of the other defendants, not under oath, should not be received nor considered by you to show a joint contract or partnership as against the other defendants or any of them. And this you should observe if in any portion of the preceding charge I have used language that might not be understood as equivalent to this direction. But, as to Burletson’s testimony in this case as a witness, that is for your consideration and to give it such credibility as you think it entitled to.”

Numerous assignments of error relate to different portions of the charge. Some involve questions already considered, and others rule relating to partnership which it is urged were not properly presented. The charge is lengthy. Isolated portions may perhaps be pointed out which are inaccurate and insufficient, standing alone, but the jury heard it as a whole and it should be so considered. The court at length informed the jury of the nature of the case, the claims of litigants, the issues involved, and the rules of law by which they should be governed in passing upon the facts, devoting considerable time to the discussion of estoppel, submitting to them the questions of estoppel, partnership inter se, and partnership by holding out.

It is complained that the court did not differentiate clearly between estoppel and holding out as applied to particular claims. The court fully and correctly explained the rules of estoppel and further said:

“A person who holds himself out as a partner of a firm is estopped to deny such representations, not only as to those as to whom the representation was directly made, but as to all others who had knowledge of such holding out and in reliance thereon made deposits in the Hanover bank, provided they exercised due diligence in ascertaining the facts. One would not be exercising due diligence by relying on mere rumor or hearsay but should apply to one of the parties or some one invested with authority to make representations as to the matter, unless there was an actual holding out to the public generally. * * * These defendants engaged in contesting this case deny all holding out to the public and all knowledge of any holding out by any one and deny all knowledge of any publication or advertisements or statements or representations by any one that they had become and were connected with the Hanover bank, or its interests or its operations, or were in any manner whatsoever interested therein to any extent whatsoever. This claim in denial of such holding out to the public should be sustained by you unless the greater weight of the evidence establishes the contrary, and the burden of proving that they so held out, as I have before instructed you, rests upon the plaintiff. If there was a holding out by any one or more of these defendants of a partnership or joint venture generally to the public, liability would attach as to the claims of all who are shown by the proofs to have known of such holding out and believed it and in reliance upon it deposited money at Hanover and have been damaged in consequence.”

We think if any error is to be found in this it is in defendants’ favor.

In such case it is immaterial whether or not the creditor relied upon mere rumor or hearsay. He would not for that reason be precluded from recovering if on the trial he was able to show a holding out by proof of actual facts and circumstances which established it. This instruction points out the distinction between estoppel, in which the representation is directly made to the creditor, and a holding out which may be made to the public generally, and of which “all others” having knowledge and relying thereon may avail themselves. Considered in its entirety, we find no reversible error in the charge.

Defendants moved the trial court to set aside the verdict and grant a new trial, urging as reasons many of the questions raised during the progress of the trial, and for the further reason that the verdict was not only not supported by any competent evidence but was against the overwhelming weight of evidence on each of the propositions involved. This motion was denied and error is assigned thereon.

It is urged that the only proof of any agreement, even to share profits of the Hanover bank, is in the testimony of Burletson, who is shown to have previously claimed that he was the sole owner of the bank, and that his testimony is squarely met by the positive denial of the four appealing defendants that the agreement as testified to by Burletson would not constitute a sufficient partnership agreement to sustain the verdict, as it does not show a community of interests, or agreement to share losses, or any intent of the parties to make each other their agents, or to form a partnership. To sustain this proposition the leading case of Beecher v. Bush, 45 Mich. 188 (7 N. W. 785, 40 Am. Rep. 465), and others sustaining the same principles are cited and relied upon. In the Beecher Case, in deciding that no partnership was established, the court stated the general rule that to constitute a partnership there must be a community of interest in a business undertaking, in which the parties are principals and agents each for the other, entitling each to participate in the profits and entailing on each his share of any losses. In that case it appeared, undisputed, that the party sought to be charged had never held himself out, nor suffered himself to be held out, as a partner either to the public or to the plaintiff. The court held there could be no partnership even as to a third person when, as between the parties themselves there was no partnership in fact and the third person has not been misled by concealment of facts or by deceptive appearances, saying:

“If parties intend no partnership the courts should give effect to their intent, unless somebody has been deceived by their acting or assuming to act as partners ; and any such case must stand upon its peculiar facts, and upon special equities”

—and it can well be added that in such cases strict definitions of partnership are not controlling and of doubtful service. In this case there is not only evidence that defendants held themselves out to the public as together running and backing the Hanover bank, or suffered others to so represent, but that they in fact associated themselves together in that business enterprise, agreeing to share the profits. While there is no evidence of an agreement to share the losses, such is always implied from an unqualified mutual agreement to share profits in a joint commercial venture.

“All that is generally required to constitute a partnership as between the parties, is, that there should be an agreement to share in the profit and loss; and even less than this may make them responsible as partners as between themselves and third parties.” Tyler v. Scott, 45 Vt. 261.

It has been laid down as a general proposition of law that, whenever—

“It is shown that business associates are sharing the profits of a business, of which they are the joint owners, and which they are carrying on pursuant to a contract between them, they are partners, however adroitly they may have attempted to escape from the partnership relation.” 30 Cyc. p. 371.

In connection with the undisputed facts, the agreement testified to by Burletson is clearly characterized by the essentials of a partnership. If Burletson’s testimony was unsupported by any extraneous evidence, and the issue stood only between his word and that of the other defendants, the contention that the verdict is against the weight of evidence would require serious consideration, but his story in many particulars is more consistent with the trend of transactions and conduct of the parties than theirs and is substantiated by much other circumstantial but persuasive proof.

The two banks were located in small villages not far apart and were closely associated in many ways. They were under the management of the same men, or man, having the same cashier. They failed at the same time. One was a private bank and the other incorporated, operating under the State banking laws; gross irregularities were found in connection with both. Defendants were all directors in the Parma bank and officially responsible for its management and implicated in the irregularities. The conneetion of defendants with, the Hanover bank as its owners and backers had been repeatedly and openly declared over its counter by those in charge to customers and prospective customers and had been advertised in the public press. Numerous persons had told of various things said and done by defendants to the same effect. Whether true or false it had become a matter, at Hanover, of common understanding and belief. The avowals of defendants that this was not only without their authority but entirely unknown to them might well test the credulity of the jury. In addition to this, there is in the case testimony, too lengthy for detail here, of various witnesses as to acts and words of defendants, and each of them, admitting or indicating that they were, with the other directors of the Parma bank, back of and running the Hanover bank. Even after the bank was closed Hunn is shown to have telephoned to Sanderson at Hanover requesting him not to let Burletson go into the bank, and, when asked what authority he would have to keep him out, said, “I give you authority to keep him out; take a club and knock him down if you can’t do any other way;” and at about the same time Bullen and Hunn, when seeking to employ the law firm of Wilson & Cobb, of Jackson, in connection with these matters, and being advised the attorneys could not serve them if their interests were antagonistic to creditors of the Hanover bank who had already retained the firm, declared that there would be no questions raised, as they admitted their liability and could not get rid of paying those creditors if they wanted to.

An examination of the testimony of the four defendants in the printed record impresses us that it is tinctured with evasions, contradictions, and an irregularity of recollection which a jury might find difficult to reconcile with frankness or with undisputed facts in the case. All this was for the jury, and the witnesses were before the jury whose function it was to determine their credibility. From the record as it reads we are not prepared to hold that the verdict was so against the overwhelming weight of evidence as to call for a reversal.

The judgment is affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.