#### STANDARD OIL COMPANY v. M. BANKS and J. N. POTTER.

(Filed 22 March, 1922.)

1. Appeal and Error — Trials—Evidence—Questions for Jury.

Held, the evidence in this case presented only issues of fact for the jury to determine, and there was no prejudice to the appellant in the trial of the action.

2. Partnership — Trials—Evidence—Questions for Jury.

In an action to recover on an account for gasoline sold and delivered to the one running a garage and another, there was evidence in plaintiff’s behalf that he had presented the bill to both defendants and the latter *205exclaimed that lie should have been informed before the account had gotten so large, that “we will straighten it up,” and that he would get after his codefendant about it, with further evidence that one owned the building and the other was a tenant therein conducting his own business: Held, sufficient to be submitted to the jury upon the issue of partnership, binding both defendants to the payment of the account.

Appeal by defendants from Lyon, J., at November Term, 1921, of PAMLICO.

Civil action to recover balance due on open account for oils and gasoline sold and delivered to tbe defendants during tbe year 1920.

From a verdict and judgment in favor of plaintiff, tbe defendants appealed.

Z. V. Bawls for plaintiff.

F. C. Brinson for defendants.

Stacy, J.

Tbis action is brought to recover tbe balance due on an open account for oils and gasoline sold and delivered by tbe plaintiff to tbe defendants during tbe year 1920. Tbe question of indebtedness was not denied; tbe amount only was in dispute. Plaintiff sued for $910.65, contending tbat sucb was tbe correct amount of its claim. M. Banks, one of-tbe defendants, admitted an indebtedness of $395.49, but denied tbat any larger sum was due. Upon tbe issue tbus joined, tbe jury answered in favor of tbe plaintiff. Tbis was purely a question of fact, and bas been settled by tbe verdict.

There was also an issue as to whether J. N. Potter was a partner and interested with bis codefendant in tbe firm of M. Banks & Company. Plaintiff’s local agent testified: “I got a statement from tbe company saying tbat M. Banks & Company owed them a large account. I saw Mr. Banks, and also Mr. Potter, and Mr. Potter said, ‘Great Lord, why didn’t you let me know before it got so large.’ ” There was also evidence tending to show tbat Potter owned tbe garage — though it was contended tbat be and Banks bore to each other tbe relation of landlord and tenant only — and tbat be stated to plaintiff’s agent be would get after Banks about tbe account; and further, be is quoted as having said: “We will have to straighten it up, and I wish you bad let me known about it before it got so large.” From this evidence we think tbe jury was fully justified in finding with tbe plaintiff on tbe second issue. Tbe defendant Potter did not testify.

Tbe whole controversy narrowed itself to questions of facts, and we have found no error in tbe trial.

No error.