(113 A.)

who had a copy of the blueprint and a contract of purchase already signed by the defendant company; that he agreed to purchase the truck on the terms set out in the contract, which he then signed, and the truck was delivered to and paid for by him on the 16th of August, 1915. The contract, which, with the blueprint, was offered in evidence,

"International Motor Company.

"General Offices: Broadway and Fifty-Seventh
Street, New York.
Proposal.

"Original

6363.

portation of miscellaneous freight between Rulon, the defendant's representative there, Baltimore and Havre de Grace, over the state road then under construction, and with that end in view he got into communication with Mr. Charles T. Cronin, who represented the defendant in Baltimore, and who gave the plaintiff one of the defendant's catalogues, containing "general, mechanical specifications" of the chassis manufactured by it, and also "gave him a demonstration of what" | is as follows: a 61⁄2 ton Saurer "truck could do." The road between Havre de Grace and Baltimore was completed in the spring of 1915, and in June the plaintiff went to see Mr. Cronin again, and Mr. Cronin took him to the defendant's factory in Plainfield and from there to its plant in New York, where he met Mr. Fetzer, head of the defendant's sales department, and Mr. Fulton, vice president of the defendant. The plaintiff states that he explained to them that he wanted a truck of "five ton capacity," and the purpose for which he wanted it, and that they recommended a Saurer truck, with a 1772-inch wheel base, and a body like one they showed him and which they were building for another man to haul green groceries in. Mr. Cronin, a witness for the defendant, testified that when he took the plaintiff to Plainfield and New York he tried to interest him in a Mack

truck; that “the Saurer truck used approximately 66% per cent. of the amount of gasoline that the Mack truck used and weighed 5,900 pounds, while the weight of the Mack was 8,500 pounds, and that the plaintiff thought that the Mack truck was too heavy and would require too much gasoline and oil. The plaintiff further testified that shortly after that visit he had an occasion to go to New York and went to the defendant's factory again to see the gentlemen he had met there; that the body that they had previously recommended had then been completed and was on the chassis; that he told them he thought it would be satisfactory, except that it was open in front; that they suggested that they could make a glass front, and insisted on getting up a sketch, which they did while he was there, and later mailed him a blueprint of it; that in talking to Mr. Fetzer and his assistant about the body, he asked them particularly about the weight of the body, and they told him they could not tell him positively about that, but that he could speak to Mr. Callahan, who was getting up the sketch of the body, and who could give him "positive information" as to what the body would weigh; that he then talked to Mr. Callahan, and that he said to the plaintiff, "Mr. Oldfield, it will weigh not less than 1,250 pounds and not more than 1,500 pounds. You can depend on that"; that it was in that connection they told him they would send him a blueprint of the body, which they did, and on the 28th of June, 1915, the Monday or Tuesday following the receipt of the blueprint, he went to Baltimore to see Mr.

"Baltimore, Md., June 28, 1915. "To John F. Oldfield (Hereinafter Called the Purchaser), Belair, Harford County, Maryland.

"The International Motor Company (hereinafter called the company) proposes to sell purchaser one (1) Sawer chassis with maximum (make of truck)

guaranteed live load capacity of ten thousand (10,000) pounds with regular equipment in accordance with standard specifications, which are to be considered part of this contract when accepted by the purchaser (complete with body as specified herein).

(Erase if chassis only)

"Delivery as follows: Truck to be shipped from the company's shops on or about August der and receipt of final detailed information, at 1st, 1915 (-) days after acceptance of orthe prices affixed, viz.:

Chassis: Type No. 1, capacity 10,000 pounds $4,800 00

Maximum length of body to be used;
wheel base feet 1771⁄2 inches.
Tires: Front, 36x5 single Goodrich de-
Body style: As per blueprint No. 5969.....
mountable; rear, 42x6 dual.
Paint chassis: As per sample.
Paint body: As per sample.

Lettering: (Sketch must accompany order.)
Extra equipment towing eye-bolt to be in-
stalled as per sketch.
Less special allowance...

Total ......

"Delivered f. o. b. cars at factory.

450 00

$5,250 00

1,040 00

$4,210 00

"Terms of payment (all payments must be made to the order of the company in New York funds): Cash on delivery.

"Shipping instructions: Over the road ($30)

no more.

"Guarantee: The company guarantees all parts of cars and trucks against defective material and workmanship for a period of one year from date of shipment to the extent that they will furnish free of charge f. o. b. factory, new parts in exchange for defective parts, provided said defective parts are returned to the factory, charges prepaid. This guarantee does not apply to chains, tires, electrical equipment, or other accessories not manufactured by the company, nor to damages or breakages resulting from wear and tear, accidents or misuse. No guarantee express or implied other than herein stated is made by the company.

"Title and ownership: The title and ownership of the motor vehicles, parts and accessories

"This contract is approved and receipt of was going to order; that they did not have a * that the plaintiff wanted a body so that he could carry as large a load as possible on the truck, but it was to be a five-ton truck with a long wheel base;

(113 A.)

cation of its express warranty to doubtful inference from the "mechanical specifications" in its catalogue, which did not even purport to apply to a chassis with a wheel base of 177% inches, and which contained no specifications whatever in regard to the body, or the weight of the body.

said by the plaintiff and the representatives, to give way to the specifications mentioned of the defendant prior to the execution of in the catalogue, then the defendant was the contract in question, and without regard clearly in default in furnishing a chassis that to any statements made by the plaintiff, or weighed 6,130 pounds instead of 5,990 pounds, representations of the agents of the defend- with a wheel base of 1771⁄2 inches instead of ant, leading up to the execution of the con- a wheel base of 1531⁄2 inches. We do not tract, it is apparent that what the defendant think, however, that the contract is open to contracted to furnish, and the plaintiff such a construction, or that there is any agreed to purchase, was a Saurer chassis, doubt as to its meaning. What the defendwith a maximum live load capacity of 10,- ant, in plain terms, engaged to furnish, was a 000 pounds, a wheel base of 1771⁄2 inches, and Saurer chassis with a live load capacity of a body made in accordance with the blue- 10,000 pounds, and a body according to the print sent to the plaintiff and referred to in blueprint prepared and furnished by it. If the body of the contract. As it is conceded the defendant, who prepared the contract, that the "live load capacity" of a chassis or had intended to make its warranty of the truck means the amount of freight it will capacity of the chassis or truck dependent carry, exclusive of the weight of the chassis upon the weight of the body it was constructand body, and as the contract expressly ing, it could easily and doubtless would have guaranteed that the chassis would have a done so by guaranteeing its "dead load" calive load capacity of 10,000 pounds, it is pacity instead of its "live load" capacity, or equally apparent that if the chassis or truck by simply stating that the guaranteed live in question did not have the capacity so load capacity was subject to the condition specified and guaranteed it was not a com- that the body did not weigh more than, say, pliance with the terms of the contract. 1,500 pounds, and the defendant would cer[1] It is earnestly contended by the appel-tainly not have left such an important qualifilee that as the thing sold under the contract was a "Saurer chassis with a maximum guaranteed live load capacity of ten thousand pounds with regular equipment in ac cordance with standard specifications, which are to be considered as part of the contract when accepted by the purchaser," etc., and as the catalogue of the defendant, under the heading, "Saurer Five-Ton, General, Mechanical Specificatións," contained the clause, "Capacity.-Normal carrying capacity inclusive of body, 11,500 pounds," the contract should be construed to mean that the truck sold to the plaintiff would have a capacity of 11,500 pounds, inclusive of the body, or, in other words, that the truck would have a capacity of 10,000 pounds in addition to a body weighing 1,500 pounds. To give the contract that construction would not only require us to ignore the conceded meaning of the terms "live load capacity," used in the contract, but would also require us to qualify and change the terms of the express warranty contained therein by adding thereto the proviso, “provided the body specified herein does not weigh more than 1,500 pounds." And this, too, notwithstanding the specifications contained in the catalogue did not purport to be "standard specifications," but "Saurer fiveton, general, mechanical specifications"; not- It is true, on the first appeal, there was no withstanding the catalogue did not contain exception to the plaintiff's first prayer, and it any specifications in regard to the body; was not, strictly speaking, subject to review; notwithstanding the defendant's witness testi- but it nevertheless received the favorable fied that the defendant did not have a consideration of the court. In the second "standard" body, and notwithstanding the "mechanical specifications" in the catalogue referred to a five-ton chassis weighing 5,990 pounds, with a wheel base of 153 inches, while the contract in suit relates to a truck with a wheel base of 1771⁄2 inches. Moreover, if, following the reasoning of the ap pellant, the express terms of the contract are

[2] The view we have expressed is apparently the view adopted by this court on the former appeal. In the first trial the court below granted the plaintiff's prayer, which instructed the jury that if they found that the plaintiff and defendant executed the contract dated June 28, 1915, and that in pursuance thereof the defendant delivered the truck mentioned in the evidence to the plaintiff and the plaintiff paid therefor, and further found that the chassis of said truck did not have a maximum live load capacity of 10,000 pounds as guaranteed in said contract, then the plaintiff was entitled to recover. Re ferring to this prayer, Judge Briscoe, speaking for the court, said:

"Coming now to the action of the court on the prayers, we find that the plaintiff's first prayer properly instructed the jury that if they found the facts set out in the prayer, then the plaintiff was entitled to recover."

trial, the court below refused to grant the plaintiff's third prayer, which contained the same instruction, except in connection with defendant's second prayer, which in effect told the jury that the plaintiff was not entitled to recover unless they found the truck delivered to the plaintiff was not capable of carrying a live load of 10,000 pounds, "exclu

sive of the weight of a body not exceeding ment for the plaintiff, and the named defend1,500 pounds." In other words, the defend- ant appeals. Affirmed. ant's second prayer instructed the jury that the guaranteed live load capacity of the truck did not include the weight of the body, except to the extent of 1,500 pounds. That was not in accordance with the proper construction of the contract.

[3] For the reasons stated there was also error in the granting of the defendant's first prayer and the rejection of the plaintiff's second prayer. The plaintiff's first prayer was properly rejected because the defendant did not guarantee that the truck was fit or suitable for the work for which it was pur

chased, and the contract expressly provided: "No guarantee express or implied other than herein stated is made by the company."

Argued before BOYD, C. J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

D. Princeton Buckey and Leo Weinberg, both of Frederick, for appellant.

Harry C. Hull, of Frederick, and William G. Towers, of Baltimore (James Clark, of Ellicott City, and Robert R. Carman, of Baltimore, on the brief), for appellee.

BRISCOE, J. The plaintiff, John A. Lupton, brought this suit against the defendants, individually and as copartners, trading as the Frederick Transit Company-New Pierce Arrow Bus Line, in the circuit court of Frederick county, to recover damages for certain injuries received by the plaintiff by reason of the alleged negligence of the defendants in the management and operation of an automobile bus, on or about June 29, 1918, on Frederick avenue in Baltimore City.

No objection was made in this court to the granting of the defendant's third prayer, and the exceptions to the rulings of the court on the evidence were not pressed. We think the evidence referred to was properly excluded, but because of the error in the rejection of plaintiff's second prayer, and the granting of his third prayer in connection with defendThe case was removed for trial to the cirant's second prayer, and the granting of de- cuit court for Howard county, and resultfendant's first and second prayers, the judged in a verdict for the plaintiff against all of ment appealed from must be reversed. Judgment reversed, with costs, and new trial awarded.

1. Partnership 218(3)—Existence of partnership for jury where evidence is conflicting. Where the question of the existence of a partnership rests on conflicting testimony, it is for the jury and not for the court.

2. Partnership 218(3)-Evidence held to justify submitting to jury issue of partnership. In an action against three defendants, as copartners, testimony by one defendant that he and another defendant operated the business, and that the third had advanced money to be used in the business and was to receive a share of the profits, held to warrant submitting to the jury the issue of whether the third defendant was a partner, notwithstanding testimony that he had only loaned the money to the firm.

3. Trial 139(1), 140(1)-Weight of evldence and credibility of witnesses are jury questions.

Weight of the evidence and the credibility of the witnesses are questions for the jury and not for the court.

Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr., Judge. "To be officially reported."

Suit by John A. Lupton against Frank E. Sheffield and others, as copartners. Judg

the defendants, for the sum of $2,500, with interest from April 12, 1920.

From the judgment entered on this verdict, one of the defendants, Frank E. Sheffield, has taken this appeal.

The record contains but a single exception, and that presents the ruling of the court upon the prayers.

The plaintiff offered two prayers, but they were not pressed, and were afterwards withdrawn.

all of these were granted except their first, The defendants presented ten prayers, and third, and eighth prayers, which were re

fused.

The ruling of the court in the refusal to grant the defendants' first, third, and eighth prayers form the basis and constitutes the only question arising upon this appeal.

The declaration is in the usual form in cases of this kind, and avers that on or about the 29th day of June, 1918, while the plaintiff was in the act of alighting from the rear end of one of the electric railway cars owned and operated by the United Railways & Electric Company, on Frederick avenue, in Baltimore City, at or near its intersection with Forest Hill avenue, in said city, and on which railway car the plaintiff had been a passenger, the plaintiff was run into and knocked by an automobile bus owned by the defendants and driven by the defendants, their agents and servants; and thereby and as a result of said collision was seriously and permanently injured about the arms, legs, head, body, and otherwise damaged; that the said injuries and damages so suffered by the plaintiff were caused directly by the careless, reckless, and negligent manner

(113 A.)

in which the defendants, their agents and a hiring car in Frederick since 1917. "We servants, operated, managed, conducted, and drove the automobile bus, without negligence or want of care on the part of the plaintiff thereunto directly contributing; that in addition to the aforegoing injuries and damages, the plaintiff was obliged to incur great cost and expense for medical treatment and attention.

rented a place in Frederick. Sheffield was in the saloon business, and suggested a bus route between Baltimore and Frederick, and Frederick and Washington, so that we all could make some money. We had one car. and Sheffield bought the Pierce-Arrow cał from the Packard Motor Car Company, for the sum of $500, in order that we could rur a bus route from Frederick to Baltimore and return. The check for the purchase of the car was given by Sheffield to N. J. Bowen and indorsed by me to the motor car company. Bowen rented the place, opened the office, did a lot of advertising, got in the telephone, and attended the other expenses. Sheffield suggested the bus routes and furnished the money. We (Bowen and I) contributed our labor and established the hiring business." The correctness of the court's ruling upon The car that caused the accident in this case the question of partnership vel non, as rais- is the one that was bought by Sheffield, Bowed by the pleadings and presented by the de-en, and the witness, and that Sheffield was to fendants' first, third, and eighth prayers, constitute as stated by the appellant, in his brief, the sole question and the only error alleged to have been committed by the court below, in the trial of the case.

To the declaration, the defendants pleaded jointly and severally, the general issue plea that they did not commit the wrongs alleged and also a special plea to the effect that at the time of the alleged wrongs, there was no such partnership as Nathaniel J. Bowen, Ernest M. Young, and Frank E. Sheffield, trading as the Frederick Transit Company-New Lierce Arrow Bus Line; nor were they at any time partners.

There was no error in refusing the defendants' first prayer. This prayer asked the court to rule as a matter of law that, under the pleadings and evidence in the case, there was no evidence legally sufficient to establish a copartnership, existing between the defendants at the time of the accident, and that the plaintiff was not therefore entitled to recover as against Frank E. Sheffield, and their verdict must be in his favor.

[1] It is apparent, from an examination of the record, that the testimony, upon which the question of partnership vel non in this case rested, was disputed and conflicting, and this being so the question of whether a partnership existed in the case between the parties was one for the jury, and not for the court to determine as a matter of law.

In 22 A. & E. Ency. of Law (2d. Ed.) 51, it is said:

"Where the facts are disputed, or the contract and intent of the parties is to be gathered by inference from parol evidence, the question is for the jury, to be determined in accordance with instructions from the court as to what facts will constitute a partnership."

[2] Ernest M. Young, one of the defend ants, was produced at the trial as a witness on behalf of the plaintiff, and testified that there was no written agreement of partnership between the parties, but that at the time of the accident on June 29, 1918, the firm of the Frederick Transit Company or PierceArrow Bus Line consisted of himself, "Nathaniel J. Bowen, and Frank Sheffield, all mixed up together"; that the firm at first owned and controlled in the way of cars and automobiles one Hudson, and Pierce-Arrow

share the profits, if any, by the firm.

The testimony, upon the part of the defendants, was in direct conflict with that given on the part of the plaintiff upon the question of partnership.

The witness Bowen, one of the defendants and one of the partners, testified that the partnership consisted of Young and himself, and that Sheffield loaned the money to the firm to buy the car, but was not a member of the firm at the time of the accident.

Frank E. Sheffield, one of the defendants, testified that he was not a member of the firm of the Frederick Transit Company on the 29th of June, 1918, but that he loaned the firm $500 to be paid back out of their earnings, and if they made no earnings he was to take the car back. He also testified that he received $80 from the firm of Young and Bowen on account of the car, and the sum of $425 from a Mr. Zimmerman for damage to the car purchased by the firm, and that he sold the car for junk for $200, making a net profit of $205.

Upon cross-examination, he testified, in answer to the question:

"This net profit that you made, did you return that to Young and Bowen? A. There was no net profit-there was another $500. I had $1,000 invested in there. There were two cars."

He further testified that he was interested in the company, in this way, "if they made any money, they were to pay me the money back."

There was other testimony upon the part of both the plaintiff and defendants, but the recital we have made is entirely sufficient to show that the court could not have granted the defendants' first prayer.

[3] The weight of the evidence and the credibility of the witnesses were for the jury and not for the court, and the prayer was properly refused.