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anything in plaintiff's conduct in visiting the car which conclusively establishes contributory negligence on his part. It was, at least, a question for the jury. Whether the rules of the company allowed drovers or their servants to ride in stockcars to watch and care for stock, or not, is not, we think, material under the issues as presented by the evidence in this case. There is no presumption against the authority of the conductor to allow them to visit the car and look after their stock while stopping at a station; and there is no evidence of any rule limiting his authority. We think the evidence in plaintiff's behalf made a case for the jury: Wright v. London etc. R'y Co., 1 Q. B. Div. 252, 257; Fowler v. Baltimore etc. R. R. Co., 18 W. Va. 579, 584; Pool v. Chicago etc. R'y Co., 53 Wis. 657; Jacobus v. St. Paul etc. R'y Co., 20 Minn. 110 (125, 134).

2. The trial court also considered the question of excessive damages, and was of the opinion that the amount fixed by the jury, though the verdict was large, was not so far disproportionate to the nature and extent of the injury suffered as to warrant it in setting aside the verdict. We esteem the judgment a large one, and if the trial court had been of the opinion, from its impressions of the case upon the evidence, that the verdict ought to have been set aside, this court would not have interfered. But there was no abuse of discretion in refusing a new trial on that ground. In support of the verdict, the evidence on the part of the plaintiff tended to show, among other things, that the foot was amputated near the ankle, but so as to save the heel. At the time of the trial, more than a year and a half after the injury, there was a running sore on the "stump" of the amputated limb, and he had endured. great pain and suffering, which continued up to the time of the trial. He was crippled for life, and his limb, which was exhibited to the jury, was liable to continue to cause him suffering in the future. He was forty-five years of age, and had been a carpenter, and able, previously, to earn good wages. Evidence of these and other facts testified to was before the jury. It is a case from the nature of which the trial court was in much better position to judge of the question than an appellate court could be. Each case must stand largely upon its own facts, and the question is one peculiarly for the jury: Ferguson v. Wisconsin Cent. R. R. Co., 63 Wis. 145; Berg v. Chicago etc. R'y Co., 50 Wis. 419, 428.

Order affirmed.

COMMON CARRIERS - MOUNTING AND DISMOUNTING FROM A MOVING TRAIN. -As to the rights of parties injured in mounting and dismounting from moving train, see extended note to Commonwealth v. Boston etc. R. R. Co., 37 Am. Rep. 384-387; note to Walker v. Vicksburg etc. R. R. Co., 17 Am. St. Rep. 422-429; note to Ingals v. Bills, 43 Am. Dec. 355–367. It is negligent and unwarrantable conduct on the part of the conductor of a train to advise a passenger to leave a moving train, or to leave in such a way as would expose him to danger: Jones v. Chicago etc. R'y Co., 42 Minn. 183; Adams v. Mis souri etc. R'y Co., 109 Mo. 555.

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PARTNERSHIP-LIABILITY OF ONE HELD out to be PARTNER. -One not in fact a partner cannot be made liable to third persons on the ground of having been held out as a partner, except when such holding out is done by him or by his consent, and was known to the person seeking to avail himself of it at the time that the contract was made. In such case, the liability rests on the principle of equitable estoppel.

Hugo Muench and F. A. Cline, for the appellants.

Albert Arnstein, for the respondent.

BRACE, J. This is an action against Abraham B. Mayer and Frederick Mayer as partners under the firm name of A. B. Mayer and Son, on two negotiable promissory notes, one for fifteen hundred dollars, dated September 4, 1884, the other for one thousand dollars, dated September 6, 1884, each payable to J. R. Wallach and Brother six months after date, and signed A. B. Mayer and Son. Abraham B. Mayer answered, under oath, denying the execution of the notes and the alleged partnership. Frederick answered, admitting that he executed the notes; avers that they were executed by him without consideration, for the accommodation of the said J. R. Wallach and Brother, and without the knowledge of his codefendant, the said Abraham; and denies the alleged partnership between him and the said Abraham. There was a

verdict and judgment for the plaintiff for the amount of the notes, interest, damages, and costs, against both defendants, and they appeal.

The evidence tended to prove that the notes were executed

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by Frederick Mayer, without any consideration, for the accommodation of the payees, J. R. Wallach & Co., and by them negotiated, and that the plaintiff acquired them for value be fore maturity, and that they were so executed and negotiated without the knowledge of the said Abraham. The main question in the case was, Were the said defendants, at the time the notes were executed, partners? and if not partners in fact, did the said Abraham so hold out the said Frederick as his partner, as that he is estopped from denying that he was a partner in an action upon the negotiable promissory notes executed by the said Frederick in said firm name, brought by the holder thereof, who acquired the same for value before maturity?

Upon the second proposition the court gave the following instructions (we quote only so much of them as bears upon the proposition): –

"2. The court instructs the jury that if they find from the evidence that at the time the notes in controversy were executed, and were received by plaintiff, the business of A. B. Mayer was conducted under the name of A. B. Mayer and Son, and that said A. B. Mayer knew such to be the fact, and acquiesced therein, then said A. B. Mayer is liable on the notes in suit, even though the jury finds that there was in fact no actual partnership then existing between said A. B. Mayer and his son Frederick.

"3. The court instructs the jury that the presumption of law is, that a party to whom a negotiable note is transferred takes it upon the faith of the persons whose names appear upon it as makers; therefore if the jury find from the evidence that A. B. Mayer knew that his son Frederick was using the name of the firm of A. B. Mayer and Son in the business of said A. B. Mayer, and said A. B. Mayer acquiesced therein, then plaintiff had a right to rely on the signatures on said notes as being the signature of A. B. Mayer and of his son Frederick, and the jury will find against both defendants, even though they find that the defendant Frederick had no express authority to sign the name of A. B. Mayer and Son to the notes."

The name that appeared upon the face of the notes sued upon as maker was A. B. Mayer and Son. The plaintiff took the note upon the faith of that firm; he has a right to look for payment of his note to every individual who was a member of that firm at the time the note was executed; he has the

further right to look for payment to every individual who, when he acquired the notes, was holding himself out to him as a member of that firm, whether he was in fact a member of that firm or not. If the instructions had been confined within these limitations, they would have been unobjectionable; but they go further, and declare that the defendant Abraham B. Mayer is liable as a member of the firm of A. B. Mayer and Son, although in point of fact he was not a member of such concern, if, at the time of the execution of the notes sued on he was holding himself out to the world as a member of the firm of A. B. Mayer and Son, whether the plaintiff knew of such holding out to the public or not.

While this proposition may be said to have had the sanction of respectable authority (Young v. Axtell, cited in Waugh v. Carver, 2 H. Black. 242; Poillon v. Secor, 61 N. Y. 456; Smith v. Hill, 45 Vt. 90; 12 Am. Rep. 189; Rizer v. James, 26 Kan. 221), it has not been able to stand the test of critical judicial inquiry, which has in vain sought for a principle upon which it could stand. The great weight of modern authority is against it. The only conceivable ground upon which one can be charged as a partner by one who contracts for him and in his name as a partner without his authority, and when in fact he was not a partner, is upon the ground of estoppel. The supreme court of the United States in Thompson v. First Nat. Bank of Toledo, 111 U. S. 529, considered this question very fully, and, after a thorough review of the authorities, held that a person not in fact a partner could not be made liable to third persons on the ground of having been held out as a partner, except upon the principle of equitable estoppel, and approved the following summing up of the law on this subject by Mr. Justice Lindley, in his treatise on the law of partnership: "That no person can be fixed with liability on the ground that he has been held out as a partner, unless two things concur, viz.: 1. The alleged act of holding out must have been done by him or by his consent; and 2. It must have been known to the person seeking to avail himself of it. In the absence of the first of these requisites, whatever may have been done cannot be imputed to the person sought to be made liable; and in the absence of the second, the person seeking to make him liable has not in any way been misled ": Lindley on Partnership, 2d Am. ed., 43.

The court cites many authorities which, on examination, will be found to sustain this position, to which others might

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