In Whitcomb v. Bacon, 170 Mass. 479 (49 N. E. 742, 64 Am. St. Rep. 317), it was held that where a broker does not have the exclusive sale of real estate, he does not entitle himself to a commission merely by showing that his efforts and services were one cause amongst others which contributed to bring about the sale, and that but for them the sale would not have been made, but he must go further and show that his efforts and services were the effective, or the predominating efficient, means of bringing about the sale. Merely bringing the property to the attention of the person who finally buys it is not sufficient in such a case. Dowling v. Morrill, 165 Mass. 491 (43 N. E. 295).

One broker, who is unsuccessful in effecting a sale, does not become entitled to a commission upon the success of another. Ward v. Fletcher, 124 Mass. 224; Crowninshield v. Foster, 169 Mass. 237 (47 N. E. 879).

For a collection of cases upon this subject, see note to Hoadley v. Savings Bank of Danbury, 44 L. R. A. 333-344 (71 Conn. 599).

We are of opinion that the court erred in not charging the jury as requested by defendant, and in not directing a verdict for defendant.

The judgment of the circuit court is reversed; and, as from plaintiff's own showing he is not entitled to recover, no new trial is granted.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, OSTRANDER, and BIRD, JJ., concurred.

SMITH v. SHERIDAN.

1. PARTNERSHIP-PARTIES LIABILITY FOR DEBT OF PARTNER. For money borrowed by an individual partner before the firm was in existence, the partnership is not liable even if the money was applied to partnership purposes.

2. SAME.

Where one of the members borrowed money, most of which he used to find a suitable location, applying a small part of it to partnership purposes after the formation of the firm, and gave his individual acknowledgment, but later executed to plaintiff, without the knowledge or consent of the other partner, a duebill signed with the firm name, his act was unauthorized and the firm was not liable in an action on the instrument.

3. FRAUDS, STATUTE OF-PARTNERSHIP-CONTRACTS.

The oral promise of one member of the firm in behalf of the copartnership that the firm should become liable for an individual debt of the other member of the partnership is void under the statute of frauds. 3 Comp. Laws, § 9515 (4 How. Stat. [2d Ed.] § 11399).

4. SAME-NOVATION.

In the absence of evidence having a tendency to show that the original debtor was released from liability, the agreement was one to answer for the debt of another.

5. SAME CONTRACTS-DEBT OR DEFAULT OF ANOTHER.

Where plaintiff claimed that one member of the partnership promised that a loan made by her to the other partner should be repaid by the firm, and that she compromised a claim for wages against the firm in consideration of the promise, executing a release in full, the testimony being disputed by defendant, the statute of frauds barred a recovery on the alleged partnership contract.

6. SAME.

Under 3 Comp. Laws, § 9512 (4 How. Stat. [2d Ed.] § 11396), the consideration for any contract required by the statute of frauds to be in writing need not be set forth in the contract, yet the agreement itself must be in writing, in order to permit recovery.

Error to Emmet; Shepherd, J. Submitted April 9, 1913. (Docket No. 17.) Decided May 28, 1913.

Assumpsit by Sarah J. Smith against Thomas J. Sheridan and Nicholas B. Crevling, copartners as the Harbor Springs Woodenware Company, for money had and received. Judgment for defendants. Plaintiff brings error. Affirmed.

W. S. Mesick, for appellant.

Halstead & Halstead and Hatch, McAllister & Raymond, for appellees.

STONE, J. This is an action of assumpsit, brought against the defendants as copartners composing the firm of the Harbor Springs Woodenware Company. The declaration consisted of a special count, and the common counts in assumpsit; the special count alleging that the defendants, on the 3d day of March, 1908, borrowed from the plaintiff $1,050, in consideration of which defendants did, at the date aforesaid, make and execute in the name of the said firm a certain agreement in writing, as follows:

"HARBOR SPRINGS, MICHIGAN, March 3, 1908. "Due Mrs. S. J. Smith, one thousand and fifty ($1,050) dollars, with interest, for value received. "HARBOR SPRINGS WOODENWARE COMPANY."

The present suit was begun April 17, 1911. The defendant Sheridan was not served with process, and did not appear.

Defendant Crevling pleaded the general issue, and gave notice thereunder as follows:

"(1) Payment in full of all demands of the plaintiff against either this defendant, or against said copartnership; (2) that this defendant never signed, executed, or delivered the instrument set forth in the declaration, or authorized any one to do so, and that this was known to the plaintiff when she received it, if it

was ever so executed, signed, and delivered at all; (3) that if said instrument was ever signed, executed, and delivered, the plaintiff gave no consideration therefor, and that no consideration therefor existed; (4) that if said instrument was ever signed, executed, and delivered, it was for purposes outside the matters connected with the copartnership heretofore existing between said defendants, and without the knowledge, consent, permission, authority, or direction of this defendant."

Defendant Crevling also at the same time made and filed an affidavit denying the execution and delivery of the written instrument declared upon; denied that he expressly or impliedly authorized, directed, or empowered, or consented to the execution, signature, or delivery of said instrument by any other person, nor was the said instrument executed, signed, or delivered by deponent, or by any person by him expressly or impliedly authorized to sign, execute, or deliver the same; that if said instrument was signed, executed, and delivered by the said Harbor Springs Woodenware Company, the same was executed by the copartner of deponent, without the authority, express or implied, of deponent, and against the express agreement upon which said copartnership was created, and against the direction of deponent, and without deponent's knowledge or consent, and for purposes outside of matters connected with said copartnership; and if said instrument was executed by any member of said copartnership in the name of said copartnership, the same was executed by the person or persons who signed, executed, and delivered the same without any authority so to do in behalf of said copartnership; and deponent averred that he never, directly or indirectly, expressly or impliedly, assented to, directed, or authorized the signature, execution, or delivery of said instrument, and deponent therefore denied the signing, execution, or delivery of said instrument. The affidavit further averred that the transaction in which

and for which the said instrument was given was not in the line of the business of said copartnership, nor did deponent know that said instrument was to be given until a long time after the execution thereof, to wit, on the 5th day of August, 1911, when the declaration in this case was served; and deponent averred that the same was executed secretly, clandestinely, and unlawfully by his copartner, if the same was executed at all, without the knowledge, authority, or consent of deponent, and in express violation of the terms of said copartnership.

Under the common counts the plaintiff sought to recover a further sum for services rendered to the copartnership. This last claim was abandoned by the plaintiff at the trial. It is undisputed that in April, 1907, Sheridan borrowed $1,000 from the plaintiff. This loan is the foundation upon which she builds her claim against the copartnership. The plaintiff testified that defendant Sheridan made certain representations to her at that time as to the use he intended to make of the money, and as to a prospective partnership with defendant Crevling, and as to the ultimate source from which payment would be made to her. It was not claimed that defendant Crevling was present when any such arrangement was made between plaintiff and defendant Sheridan, and in fact the plaintiff did not know defendant Crevling at that time. Defendant Crevling had not authorized Sheridan to borrow any money for the prospective partnership; and in fact the partnership was not formed until the 24th of October, 1907, at which time the defendant Crevling knew nothing about any such loan having been made to defendant Sheridan. The plaintiff testified that about a month after this loan she received from defendant Sheridan a paper, which was not produced, but which she testified was signed by Sheridan in his individual name. This paper had been lost.

The deposition of the defendant Sheridan was taken