Kahn

The plaintiff brought this action to recover the value of certain goods, wares and merchandise alleged to have been sold and delivered to the defendants, who were co- *416 partners doing business under the firm name of A. I. Brilliant & Co. The defendant Byington only appeared, and by his answer he denied that he was a partner with the other defendants. The case was tried by a jury, and the verdict and judgment were in his favor. From this judgment and an order denying his motion for a new trial the plaintiff appeals.

The only point made for a reversal is that the court erred in refusing to give to the jury a certain instruction asked by the plaintiff. In charging the jury, the court, among other things, said: “Now, there are two essential points in dispute here, and it is around these two points that your deliberations must crystallize. These points are substantially these: Was or was not Mr. Byington a partner in this firm of A. I. Brilliant & Company on or after December 17, 1889 ? Or, if he was not a partner, did he (Mr. Byington) permit himself to be held out or represented as a partner in such firm at any time to third persons, who gave credit to such firm on the strength…