27 Md. 645 | Md. | 1867
delivered the opinion of this Court.
The appellants, with John Howarth and George Hutton,
The first exception was abandoned in the argument.
The plaintiffs offered the two letters in the second exception, with a statement to the Court that they would
Articles of co-partnership made the 17th November, 1859, with other proof, having been offered by thé plaintiffs and gone in, they then further offered the paper in the third exception, dated September 29,1859, and admitted to be in the handwriting of the defendant Beall. It is complete with the exception of the signatures of the four parties named therein, (the defendants,) and an attesting witness, and is expressly entitled a memorandum of an agreement made that day to be finally made and entered into at some future day between them. Its admissibility was objected to by the defendants, but the objection was overruled.
As an item of evidence to show Beall’s intention to become a partner at a date prior to that in the articles of agreement given in evidence, the paper offered being in the handwriting of said Beall, we think it was properly admissible, but only as affecting Mr. Beall.
The bills offered in the fourth exception and allowed to be put in evidence by the plaintiffs were admitted to be in the handwriting of Hutton, and were announced to the Court as offered only as evidence of partnership against Hutton. The fact that Hutton had confessed judgment for the claim and thus admitted the partnership, did not preclude the plaintiffs from showing by any further testi
The trial proceeding, the plaintiffs offered in evidence an unsigned paper, admitted to be in the handwriting of said Beall, and described as articles of agreement between Hutton, Beall & Co. (of Allegany county, Maryland, and Boston, Mass.) and Samuel Mattick, of Preston county, Virginia, dated “this ■-■ day of November, 1859.” It proposed to exchange certain lands of the partnership, which had been purchased by Howarth, and describing them, with Mattick for certain other lands containing cannel coal, and for certain mining privileges. Its admissibility was objected to, but allowed by the Court, and to this ruling the fifth exception was taken by the defendants. It was admissible, as another item of proof against Mr. Beall, in whose handwriting the paper was admitted to be, and as cumulative evidence of his membership of the firm, the paper could not be ruled out.
Tibbetts, a witness for the plaintiffs, having been examined in chief, proceeded, on the cross-examination, to state that “ there were complaints made by Sowarth & Sutton, by letter, of the defectiveness of the luorh.” To this statement the plaintiffs objected, and the Court refused to permit it to go before the jury as evidence ; and we think rightly. The offer was to prove by parol the contents of a letter, not produced or for the production of which no notice appears to have been given. This disposes of the sixth exception.
The defendants’ seventh exception was taken to the exclusion by the Court of portions of evidence taken by
Having proved by Nelson Beall certain facts as detailed in the record, the defendants then offered to prove further by him the understanding with which the agreement of 17th November, 1859, was executed and held by Beall, and also its cancellation of 28th December, 1859. But the Court sustained the plaintiffs’ objection to this offer, except so much as related to the writing and execution of the articles of partnership of 17th November, 1859. We think the Court erred in excluding this proof, for the reasons given in our disposal of the seventh exception, except so much as related to the amount of the exhibits made by Hutton. They ought to have been produced. The tenth exception was to the exclusion of the articles of cancellation of the 28th of December, 1859, offered alone, unconnected with the testimony of Beall, that had been rejected. Standing alone it was not evidence against the plaintiffs; nor did it serve the defendants in this action, and, as immaterial testimony, should have been rejected. The Court was therefore right in refusing its introduction. The proof of Douglass Percy, offered in the eleventh exception, was properly rejected as res inter alios.
We proceed now to the consideration of the defendants’ twelfth exception, which arose upon the prayers, and was taken to the granting of the plaintiffs’ prayers, and its refusal to grant the defendants’ first prayer without the modification to it by the Court, and the rejection of the second and third prayers of the defendants.
The defendants’ prayers are now to he considered.
The first, second and third prayers of the defendants present the hypothesis, that if the articles charged were furnished to, and upon the orders of Howarth & Hutton, then partners, and that they were so furnished or engaged to be furnished prior to the 17th of November, 1859, then the-plaintiffs cannot recover in this action, though they should find that Beall & McCullough became partners with them at that time upon the terms expressed in the paper writing of that date ; unless all agreed that Howarth & Hutton should he released from the engagements made by them and that they and Beall & McCullough agreed anew with the plaintiffs to become responsible therefor; and that there was no evidence in the case of such release and new promise. The Court, by a modification of the first prayer, instructed the jury that the plaintiffs could recover in the action, if in addition to the facts referred to in it, “ the jury should find that Beall & McCullough after coming into the firm of Hutton & Howarth, expressly or impliedly agreed to assume the debt due by said firm to the plaintiffs.” The general principle is, that an incoming partner will not he liable in respect of debts contracted by the firm previously to his joining it, and that the presumption of law is against any such liability. Yet he may become liable by expressly assuming them upon a proper consideration, or otherwise dealing with the, creditor in such a manner as to create an implied obligation and duty to pay the same in common with the old firm, hut this is not
The first prayer of the defendants, according to these views, should have been granted, as propounded; also, the second and third, this Court understanding the word,
We therefore affirm the Court below on the first, second, third, fourth, fifth, sixth, eighth, tenth,' and eleventh exceptions, and reverse on the seventh, ninth, and twelfth exceptions of the defendants.
In the course of the trial the plaintiffs below took two exceptions to the rulings of the Court, and their appeal also. But as the verdict and judgment below were for them, their appeal was inadvertently taken and prosecuted, and will be dismissed. As this Court has reversed in the other appeal, and the case goes back upon a procedendo to be tried over, it is the duty of this Court to express its opinion upon the exceptions taken by the plaintiffs below. The first was to the ruling of the Court in excluding all the testimony of George Hutton, taken under a commission issued to John P. Poe and Frederick Pinkney. The only objections specified in the exception were that the papers referred to in the sixth and seventh interrogatories and the witness’ answer to them, were not returned with the commission and testimony taken under it. The Court not only sustained these objections, but refused to let any part of the testimony taken under the commission be read to the jury. In examining the interrogatories and answers we find that they chiefly related to papers which ought to have been submitted to the witness, and identified, and returned with the commission. Testimony relating to them or their contents, when these themselves are important and material, and are the best evidence of their own existence or nature, is inadmissible, when their non-production is unexplained, and no foundation has been laid for the introduction of
Judgment reversed and procedendo awarded.