Sheppard v. Willis

Brent, J., delivered the opinion of this Court. The question presented by the record in this case arises upon an application to the Court below “ to say, that in order to entitle the plaintiffs to recover from the defendants, it must find that there was a co-partnership existing between the said Sheppard & Jones, at the time of said transaction, mentioned in the bill filed in the cause, but that there was no sufficient evidence of that fact, and that the judgment must be for the defendants.” The case was submitted and tried, by consent, before the Court of Common Pleas for Baltimore city. It was accordingly its province, as it would have been, that of a [634] jury, to decide upon the facts presented. A decision so made upon the weight and force of the evidence is no more the subject of an appeal to this Court than would be the verdict rendered by a jury. Courts, however, may with propriety be called upon to give an instruction as to the insufficiency of evidence, and will do so when there is no proof offered from which a reasonable mind may infer the existence of a fact necessary to be established in support of the issue joined. Did we regard this appeal as an application to this Court to review the conclusion of the Court below upon the weight or credibility of the testimony, we would, ex mero motu, pass an order of dismissal. But construing the prayer of the defendants to mean that there is no proof legally sufficient to be considered by the Court to establish the partnership in question, we will, in that view, decide the point presented in the bill of exceptions. Upon examining the testimony of the two witnesses produced, we think there is not only testimony, legally sufficient, tending to prove the partnership of the defendants in the transaction, which is the subject matter of this suit, but that it is established as conclusively as could well be done by parol evidence. There is, therefore, no error in the ruling of the Court below, and we will add that the appellants have failed to show the slightest ground for their appeal. (Decided 14th May, 1868.) Judgment affirmed.