26 Ark. 135 | Ark. | 1870
Augustus L. Ward and Leonard C. Southmayd, surviving partners of-"Wallace, of the firm of Wallace, Ward & Co., presented to the court of probate, of Franklin county, for allowance, a demand against the estate of Abner Adams, deceased, for $481 85, a balance due on the following promissory note, made by Berry & Adams, of which firm the said Abner Adams was a member.
“$500. Yan Burén, Arkansas,
November 21,1857.
Six months after date we promise to pay to the order of Wallace, Ward & Co., five hundred dollars, with interest, at the rate of — per cent, from date until paid. Yalue received.
Witness my hand and seal.
BERRY & ADAMS.”
The decision in the court of probate being against the validity of the demand, the claimants appealed to the circuit court.
The circuit court reversed the judgment of the court of probate, and upon a trial de novo, the claimants recovered judgment for the amount of their claim.
The executor, James H. Adams, appealed to this court.
Upon the trial in the court of probate, after the claimants had read the note in evidence, the executor, having first proven it to be in the hand-writing of John Ingram, and that he was, at the date thereof, the agent of the plaintiffs, who composed the firm of Ward & Southmayd, and authorized to make collections for them, read in evidence to the jury the following receipt:
“Received, Huntsville, Ark., July 13, 1859, of H. C. Berry, five hundred dollars, on note of Berry & Adams.
WARD & SOUTHMAYD, per John Ingram.’'’
And in the circuit court, upon a like showing, he offered again to read the same, and also the following receipt to the jury:
“Received, Huntsville, Ark., March 1st, 1860, of H. C. Berry, five hundred dollars, to be credited on note given by Berry & Adams.
WARD & SOUTHMAYD, per Ingram.”
Although the firm of Ward & Southmayd was composed of the surviving members of the firm of Wallace, Ward & Co., there was no identity in respect to the property and business ,of the two firms. By the death of their partner, they became ehtitled to the exclusive possession of the property and management of the business of the firm of Wallace, Ward & Co., but only for the purpose of settling and closing the same, and were tenants in common with the representatives of their deceased partner. Par. on Part. 440.
Without some evidence to connect the receipts with the note to Wallace, Ward & Co., and none is disclosed by the record, they were wholly irrelevant to the case; and as they were calculated to mislead the jury, the admission in the court of probate of the former, against the objections of the claimants, was an error, and for which we presume the circuit court re-verBed its judgment; and for the same reason the latter court •did not err in excluding both from the jury.
The record presenting no other question, the judgment of the court below is affirmed.
