103 Mich. 409 | Mich. | 1894
The plaintiffs obtained a judgment in an action of assumpsit against the defendants, as partners, irom which the defendants appeal.
“He [Gristock] is a partner of mine now, and I intend to buy him out when I get this money.”
The court instructed the jury that this statement by Potter could not be used to bind Gristock, unless Gristock authorized Potter to say that he was a partner. The‘main point in controversy was the question of partnership, and we think the statements of one were not competent to prove the partnership against the other. But either partner had the right to make this defense, and both were making it. Both testified, in substance, that they were not copartners. The admission of Potter could not establish it as against Gristock, nor could that of Gristock be used to prove it against Potter, but the admission of each was evidence against the party making such admission. 2 Greenl. Ev. § 484. This testimony was competent, therefore, to show that Potter was a partner. Being admissible for that purpose, it was proper to receive it.
The court submitted the question of actual partnership to- the jury, and this is said to be error. There was testimony that each defendant had admitted that they were in partnership. This justified the submission of the question to the jury, although i't were true, as claimed, that both parties denied such admissions, and testified to facts which, if believed, showed that they were not partners.
The court instructed the jury that in one view of the case the defendants would be estopped from denying the partnership. This was based upon testimony that Potter introduced Clark, the traveling salesman of Herman Deitz, at the time he gave an order for goods, to Gristock as his partner, and that the fact was communicated to his employer before the goods were shipped, at a time when
“If you find any goods were sold to them under the statement made and understanding had by these parties, or by their actions, or the actions of Gristock, that they were partners, or such actions as would lead the party to fairly believe it, and he acted upon it in good faith, they are liable.”
We think it possible that the court understood this language to apply to the Deitz claim. But evidence had
We therefore feel constrained to reverse the judgment, and order a new trial. Ordered accordingly.