#### Lovisa E. Freeman v. Exchange Bank of Lanark.

I. Instructions—Assuming Matters Not Proven.—An instruction which assumes the existence of a partnership between the parties litigant, in the absence of any evidence tending to show such existence, is erroneous.

Assumpsit, on a promissory note. Appeal from the County Court of Carroll County; the Hon. B. L. Patch, Judge, presiding. Heard in this court at the December term, 1894.

Reversed and remanded.

Opinion filed May 28, 1895.

J. H. Hunter, attorney for appellant.

Geo. L. Hoffman and W. H. A. Kenner, attorneys for appellee.

Hr. Presiding Justice Lacey

delivered the opinion of the Court.

This is a case similar in nearly all respects to the case of appellant v. Henry H. Gordon, ante, except the indorsement of the note to appellee. Appellant’s plea was the general issue sworn to. We refer to the case last above named for a statement of the main facts in this case. The instructions numbers one, two, three and four for appellee are erroneous for assuming a partnership between the appellant and appellee, and giving instructions to the jury on the subject of the law of partnership when there was no evidence tending to show that any partnership existed between appellant and Orr, and in addition, instruction number three is not based on any evidence in the case; number four gave the law erroneously, relating to ratifications, as we noticed in the case against Gordon. Humber five is erroneous on the question of partnership; six and seven the same, and also eight, nine, ten and eleven are all erroneous; several of the above instructions are erroneous on the question of ratification. The lease in question did not create a partnership. It does not matter that the law was laid down differently on be*198half of the appellant than it was for appellee; the instructions should be consistent and the jury given to understand what the law of the case really was.

The judgment of the court below is reversed and the cause remanded. .