delivered the opinion of this court.

In cases like the present tile court of final resort should not express any opinion upon the facts, further than may be necessary to determine whether the evidence is legally sufficient to warrant the conclusions of law asserted in the prayers, because, if the record be remanded for another trial, remarks by us upon the testimony might have weight with the jury, who aloue are competent to pass upon questions of fact.

The action was instituted by the appellants against the appellee, to recover for work, labor and materials in and about the repairs of a steamboat. The correctness of the account is not denied by the defendant, but he insists that there was an association or partnership of persons in the steamboat; that he had no other relation to it than as being one of these persons, and that the plaintiffs were also partners, quite as active and participating as largely in getting up the enterprize for keeping open the harbor of Baltimore, as was the defendant himself. From this alleged relation it is contended that the' plaintiffs cannot sue the defendant at law for work done for the benefit of the association, or to advance its interests. The propositions of law and fact, therefore, in the court below, resolved themselves into the question, whether the work *142was done on the credit of the defendant, or on that of the association, at that lime in progress of being formed, and for whose use, as it is said, the boat was undergoing alterations and repairs. If Turner purchased the boat, and had her altered and repaired in the expectation of selling her to, or of having her employed by, the association mentioned by the witnesses, he ought to pay, whether she was so employed or not; but if the work was done upon an agreement, or understanding, between him and the plaintiffs, that the association was to pay, or that the plaintiffs should look to the association for payment, then the defendant is not liable in this action. The correctness of the rulings below must be tested by the application of these principles to the prayers offered by the parties.

The evidence is so contradictory, or we should rather say, that so much was said, written and done, during the time covered by the transactions detailed in the record, that the jury might have found one or the other of the theories asserted by the parties, according to the views they might have taken of the testimony, the credit to be attached to the witnesses, and the circumstances and motives under which these transactions took place. Each party had the right to call on ■the court for instructions, based on his view of the case, if ..the. evidence relied on was legally sufficient to warrant the conclusion sought to be deduced from it. If an illustration be needed, we may state the familiar distinction between a collateral and an original undertaking, where it is sought to .charge one person for the price of goods sold and delivered to .another, there being no writing to bind the party. The plaintiff may ask the court to say to the jury that they must find for him, if they believe, from all the evidence, that credit was given to the defendant, and so the defendant may claim the verdict if the jury find that credit was given to the party receiving the goods.

As we have said, the question .in this case was, to whom ;was the credit given, and if, as we think, the prayer of the plaintiffs placed their hypothesis of the testimony0fairly before the jury it ought to have been granted, and if granted with *143a proviso qualifying the instruction to the prejudice of the' party tendering the prayer, they have cause of appeal. It left the jury to find whether the repairs and alterations were done by the plaintiffs for the defendant, and by his order and direction, and whether he was at the time the owner of the boat; upon their so finding the plaintiffs claimed the verdict. And, to allow the defendant the benefit of his defence, the jury was also authorized to find, if they should take that view of the case, that it was agreed between the parties that the work should be paid for by some person or persons other than the defendant, or was done upon the credit of some other person or persons, in which event the prayer conceded the plaintiffs could not recover. Now, the allegation of the defendant was, that there had been an understanding that the association should pay, and, under this clause of the prayer, the defendant was fully protected.

The claim and the defence were thus presented to the jury, and their consideration invited to both. We cannot perceive bow this instruction could have injured the defendant.

But it is said that the plaintiffs had the full benefit of the prayer as offered, because the proviso did not change or modify its meaning. We must suppose that the court below thought otherwise, and that the proviso was designed to change the prayer, else why was the addition made; and we think that it. had such effect. The prayer made the plaintiffs’1 recovery depend on the ownership of the boat by Turner, and that the work was done for him and by his order; the proviso added another fact to be found, viz., that the work was done for his benefit and not for the benefit of an association. If a man orders work it is immaterial for whose benefit it may be intended; he must pay. Even if the plaintiffs knew that the boat was designed to be sold for the association mentioned in the evidence, their right to recover against the party ordering the work cannot be questioned, unless, as admitted by the prayer, credit was given to the association. We are of opinion that the prayer should have been granted as tendered by the plaintiffs.

We also think there was error in the defendant’s prayer, as offered, and that it was not perfected by (he proviso added by the court. There was no evidence from which the jury could find that the plaintiffs, or either of them, signed, or authorized their names to be signed to the paper’referred to in the prayer, nor of any acquiescence on their part after it had been signed. To be sure, it appears (hat Wells, one of the plaintiffs, was actively participating in the transactions for-opening the harbor, .and for employing this boat for. that purpose, and, we think, there is evidence from which his knowledge and acquiescence may be inferred; but Miller, the other member of the firm, does not appear to have parlici.paled in these proceedings, or to have done any thing from which his knowledge that the partnership name had been put to the paper could be deduced; and we do not perceive how he can be bound by the acts of his partner, unless it be shown that he was acting by his authority, for the firm, or within the scope of his power as a member of the firm. We gather . from the record that they were machinists, and the acts anddeciarations of Wells, in reference to the formation and objects of the association were not connected with the business .of his co-partnership. The fact of the acquiescence of Wells in the articles of association is but an inference from his attendance at meetings and otherwise participating in promoting its objects; but, according to the principles of the law of evidence, an inference from an inference cannot be permitted; the consent, therefore, of Miller, cannot be deduced from Wells’ participation in these proceedings.

Judgment reversed.cmd procedendo ordered.