The opinion of the court was delivered by

It is important to consider the general merits of this case, as the importance and construction of the incidental questions, depend very much upon the view the court take of the rights of the parties, as presented by the general facts in the case, in regard to which, there seems to be no ground of question, upon the finding of the auditors.

It is found by the auditors, that the iepresentation made by Wright and Nourse to the plaintiffs, upon which they delivered the goods, upon the joint credit of defendants, was that the defendants were in partnership at the time the goods were delivered. The truth of this representation is expressly negatived, by the finding of the auditors. The defendants then, are not jointly liable for the plaintiffs’ claim uj>on the ground, that they were, in fact, partners.

*660The only other ground, upon which they can be made liable is, that they so conducted, as to justify the plaintiffs in treating them as partners, and to deliver the goods charged in this account, upon them joint credit. In other words, that the conduct of Hart was such as to justify the plaintiffs in trusting to the representations of Wright and Nourse, without further inquiry. This depends in some sense, upon the extent of the contract of December, 1849. And although it is not very certain, precisely what were the expectations of the parties, in regard to that contract, still it seems to us, there is nothing in the case to show, that anything was ever done under that contract, by Hart, which would make it reasonable for any one to presume, or infer, that he considered, he was actually carrying forward and putting into operation a partnership. Indeed, we understand the auditors to find expressly, that he did nothing towards carrying the contract into effect, while any partnership was in contemplation. This seems to have been abandoned, when Wright was up in April or May, and before that, Hart had done nothing, except to go to Ludlow, to see whether any such thing could be accomplished. And the scheme seems then to have been given up, for the túne, with the expectation certainly, that, at some future time, it should be carried into operation ; under these circumstances, it seems to us, that both parties had a right to expect, that nothing farther should be done, until the parties met and settled the scheme, so to speak, of the partnership transaction. It would have been regarded, as very absurd, for Hart to have gone forward immediately, to carry the celebration into effect, or indeed, to have done anything, in furtherance of the general object contemplated, until the minds of the parties met upon the thing to be done, and the time and place of its accomplishment.

So equally was it a thing altogether aside of the duty, or authority of Wright, to employ an agent, or to make, or authorize the agent to make purchases, or representations of, or upon the joint liability. It was a mere assumption, on, the part of Wright, as it seems to us, and as such, no way binding upon Hart, or justifying the plaintiffs, to regard Hart, as a partner, without farther inquiry. If plaintiffs have trusted to a false representation of Wright, they should bear the loss. No actual operative partnership, ever existed between the parties, unless the whole was a partnership. The *661contract which was made, on the most favorable view for the plaintiffs, was merely preliminary or executory, to constitute themselves partners in a transaction, to be carried forward at some indefinite time future, which no more constitutes a present partnership, than if the time of its contemplated existence, had been fixed by the contract. It was evidently not to go forward, until the farther action of the parties. It was therefore, strictly revokable, or rescindable, at the election of either party ; and was in fact never consummated.

Under this state of facts, it seems impossible to say, that Wright was fairly justified in going forward, without the farther consent of Hart. What he did therefore, and what Nourse did, being in fact merely the agent of Wright, they did altogether, without any constructive consent of Hart, and by consequence, in their own wrong; and Hart is not to be affected thereby. The fact, that Wright employed Nourse, before it was ascertained that the tent could not be erected in the vacant lot adjoining defendants’ hotel, does not seem to be important, inasmuch as no arrangement was made, whereby Wright had any present authority to employ an agent, or make contracts, or representations, on behalf of the defendant, Hart. We think therefore, most obviously, that on the finding of the auditors, and it seems sufficiently explicit, it is impossible to regard the defendant, Hart, as a copartner of Wright, in fact, or that he did anything, which would justify Wright, or Nourse, as so representing him, or the plaintiffs in treating him as such.

In regard to most of the exceptions taken upon the trial, and they seem to have been very numerous, and sufficiently minute, most of them, seem to proceed upon some basis, or supposition, that the parties were not witnesses to the same extent, and liable to the same impeachment or contradiction, in the action of book account, where a question of partnership is concerned, as other witnesses. But of this, there can be no doubt whatever-. That is determined, in the fullest, most unqualified manner, in Clark v. Marsh, Administrator, 20 Vt. 338. I could scarcely add much to what is there said, and the court have not found any occasion,' to recede from the views there announced.

An objection is made, in different forms, to inquiries made in regard 'to the conduct, and declarations of the defendants towards each other, and as to Wright’s conduct of the business, as tending *662to make out, that at the time neither Wright or Hart treated the transaction, as a joint undertaking, but the sole business of Wright. It seems to us, that this objection is not well founded. These things were a part of the transaction, the res gesta, and the very question to be determined by the auditors was, what was the transaction. The testimony was then to the very point in controversy.

The objections taken and reserved by the plaintiffs, seem, all to range themselves more or less nearly, under one or the other of these heads, except the inquiry, as to how the defendant, Wright, obtained bail and who became his bail. ' And this inquiry, is so remote, that it seems singular, how any one should have regarded it, as having any legitimate bearing upon the determination of the question, at issue; and it was therefore, as we judge, improperly admitted. But it is so remote, that it seems to us absurd to suppose it could have had any bearing, in determining the finding of the auditors. We should not therefore feel justified in opening the case upon that ground.

1. Nourse’s letter is important, if at all, in showing how he represented the matter at the time, and especially to Hart, as affecting his credit, as a witness.

2. The accounts rendered, at the time, between the defendants, are undoubtedly an important part of the transaction, upon the question, whether there was a partnership, in fact.

3. The same may be said of the order of Hart on Ketcham & Moore. It was a part of the transaction and tended to show how the parties, especially Hart, treated it, at the time.

Judgment affirmed.