MEYER V. THE MIDLAND PACIFIC RAILROAD COMPANY.

very frankly that he is in no wise certain about it; and testifies, that, when the whistle sounded "Down brakes!" the train was about fifty yards from the crossing where the accident occurred; that he saw persons applying the brakes, and the train was stopped just west of the crossing. This shows quite conclusively that the speed of the train between the bridge and the place of the accident could not have exceeded five or six miles an hour, and that, upon the call of "Down brakes!" every reasonable effort was put forth to avoid a collision and save the plaintiff. I am of the opinion that there is next to a total want of evidence to support the charge of carelessness in the running or stoppage of the train, on the plaintiff's own showing; while there is a large number of witnesses called by the defendants whose testimony all goes to confirm this conclusion.

It only remains to inquire whether the engineer was at all remiss in the duties resting upon him, in keeping watch for objects upon the track, and in giving warning of the approach of the train. On this point I find no difficulty. The testimony shows most conclusively, that, from the time of starting from the depot, he used the whistle at all highways and crossings, fifty yards from each, and kept the bell constantly ringing; that he had the track constantly in view, and saw neither of the children until he was within about eighty feet of the crossing before spoken of.

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The engineer swears, that, if the children had been on the track, he could have seen them; that he first saw the boy, and supposed he rose from the ditch; that he whistled Down brakes" immediately, reversing the engine, and did all in his power to stop the train. The plaintiff he did not see until the locomotive was just about to strike her, and when he was exerting himself to the utmost to save the boy.

MEYER V. THE MIDLAND PACIFIC RAILROAD COMPANY.

After a very careful consideration of this case, I am forced to the conclusion, that the verdict as to all the defendants is clearly and palpably against the weight of evidence, and should not be permitted to stand. For these several reasons, the judgment must be reversed, and a trial de novo awarded.

Judgment accordingly.

STRADER v. WHITE.

Strader v. White.

EVIDENCE: Impeaching witnesses. It is competent to show that a witness has made statements out of court upon a material point of the case, contradicting his testimony, when, on his examination, he has denied, after having his attention directed to the fact, having made such contradictory statements.

PRACTICE: Exceptions to charge. A general exception to the whole of a charge of the Court to the jury, composed of several distinct propositions of law, will not avail the party making it, even though some of the propositions be not tenable.

PARTNERSHIP: Contribution of services. If a person contract with a partnership to contribute his services to the enterprise, for which he is to be compensated by a proportion of the profits, he becomes a member of the firm, and liable for its debts, although he do not stipulate to bear any part of the losses.

: Secret partner. If a party become interested in an enterprise so as to be chargeable as a partner with the debts of the firm, he will not be suffered to escape by the device of a colorable transfer of his interests to others.

: Inconsistent verdict. A verdict against three persons is not inconsistent because it holds one party as a secret partner and the other two as partners as to third parties, when the former, to conceal his relation, has made a colorable transfer to the latter, and they hold themselves out as partners.

Error to Cass District Court.

The facts are fully stated in the opinion.

Shambaugh & Richardson, for plaintiffs in error.

1. The Court below erred in admitting in evidence the deposition of Samuel G. Willard. The evidence, if admissible at all, could only have been used as evidence

STRADER v. WHITE.

in chief; and we contend it could not have been used as such, for the reason that the declarations of G. Fred White could not be given in evidence to affect his codefendant, F. A. White, and also for the further reason that a partnership cannot be proved by evidence of the declarations of one of the members of the supposed firm. 2 Greenleaf on Evidence, sect. 484; 1 Greenleaf on Evidence, sect. 177.

Such declarations cannot be used against other persons; and this evidence could not be used against G. Fred White, because, being evidence in chief, it should have been offered as such, and an opportunity afforded the defendants to meet and disprove it by other proofs.

But the deposition was not offered as evidence in chief, but as rebutting evidence: certainly it cannot be regarded as such. If the evidence tended to prove any fact, it was that a partnership existed between all the defendants. This was the sole question at issue; and, the burden of proof being on the plaintiff, he was bound to offer all his evidence in chief in the first instance, and could not split up his case, and keep back a part of the evidence until the defendants had closed their case, and then offer the evidence in rebuttal, and thus deprive the defendants of an opportunity to meet and repel it by contrary proofs.

And this evidence was inadmissible as impeaching testimony, because no sufficient foundation had been laid by the cross-examination of G. Fred White.

2. The Court erred in admitting the evidence of the witness McCartney for the same reasons urged against the admissibility of the deposition of Willard.

3. The Court erred in its instructions to the jury. The assignment by Wadsworth & Everest of the onethird part of the net profits which might be made on their railroad contract to C. J. & G. Fred White, in payment

STRADER v. WHITE.

for the services which they (the Whites) had agreed to render them, did not constitute a partnership as between Wadsworth & Everest and the Whites, nor as to third persons as creditors of Wadsworth & Everest. If a person agrees to render services or perform labor in the prosecution of any enterprise or business, and stipulates for a certain share of the profits, or even net profits, of such business, as compensation and payment for such service or labor, he does not thereby become a partner even as to third persons. Loomis v. Marshall, 12 Conn. R., 69; Denny v. Cabot, 6 Metcalf, 82; Voorhees v. Jones, 29 N. J. (5 Dutcher) R., 270; Story on Partnership, sects. 36-49, inclusive; 1 Denio, 337; 17 Mass., 197-206; 8 Cushing, 556; 3 Comstock, 132; 6 Pickering, 335; 5 Denio, 68; 3 Hill, 162; 15 I., 31; 1 Barr., 255; 5 Gray, 58; 10 Johnson, 226; 3 Pickering, 435; 6 Greenleaf, 76; 15 Sergt. & Rawle, 137; 20 Wendell, 70; 21 Vermont, 548; 14 Pickering, 192; 43 Ill., 437.

The true rule is laid down in Story on Partnership, sects. 36, 38, 39, 49: "That a participation in the profits of a business is only presumptive evidence of a partnership, and therefore liable to be repelled and overcome by other circumstances, and not of itself overcoming or controlling them; that the circumstances under which the participation in the profits exists, and the actual intention of the parties, may be shown; and that if no partnership were intended between the parties, and it can be shown that the portion of the profits is taken, not in the character of a partner, but in the character of an agent, as a mere compensation for labor and services, then a party stipulating for a share of such profits cannot be held liable as a partner as to third persons, unless when the parties sought to be charged had held themselves out as partners to the public, or their conduct operated as a fraud or deceit upon third persons."