made, or in any manner ratified them. The evidence was clearly improper. 2 Greenl. Ev. § 484, and cases cited; 1 Lindl. Partn. p. 85; Bates, Partn. § 1157. Respondents in their evidence referred to one Fishborn, an employe, and stated his position to be that of “a general salesman, who is acquainted with the trade, and controls the trade, so to speak.” Appellant, when on the stand, was asked what business he had done with this man Fishborn, acting for the house. An objection to the question was sustained, whereupon appellant’s counsel offered to show by the witness that, at different times previous to the formation of the firm of Gillitt Bros., witness had transacted business with plaintiff firm through Mr. Fishborn as agent; that he had made purchases through him; had paid money through him, and received credit for the moneys so paid; that he had done business of a general uature relating to his business with the plaintiff firm through said Fishborn. Further, that in June, 1888, witness met said Fishborn on the cars, and stated to him fully all of the facts in regard to his sale of the business, and of his retirement therefrom, and expressly stated to him that he had no interest whatever in the profits and losses of the business of Gillitt Bros., but had turned over the business entirely to them. This was objected to on the ground that, under the offer and the evidence, notice to Fishborn would not be notice to the firm, and the objection was sustained. This ruling was correct. Whether or not the offered evidence was vulnerable to the particular objection urged we need not decide. “It was clearly immaterial and incompetent. As we have said, there was no question of estoppel in this case—no claim of partnership liability on that ground; the sole issue being whether Harvey Gillitt was in fact a member of the firm of Gillitt Bros. Appellant could not show that he was not such partner by proving his former statements to that effect, whether such statements were made to an agent of the firm, a member of the firm, or a stranger. Such statements were entirely incompetent. For the reasons hereinbefore stated the district court is directed to vacate its judgment and order a new trial. Reversed. All concur.
