Boyd v. Ricketts & Brister
60 Miss. 62
Miss.
1882
Check Treatment
Cooper, J.,

delivered the opinion of the court.

The deposition of the plaintiff Boyd, as against the defendants, Hewett and Campbell, ought not to have been excluded on the ground that it was hearsay.

There were two questions presented for the decision of the jury: First, whether these defendants had been at any time members of the firm of Bicketts & Brister; and second, if they had been such members, whether, under the circumstances, they were bound for the debt sued for, which had been contracted after their with drawal. Testimony tending to prove the first had been delivered, and the plaintiff was entitled to have this fact treated as established, so far as to govern the competency of other testimony offered for the purpose of completing 1ns case by making proof as to the second.

If the only question presented had been whether these defendants had at any time been members of the firm, it would not have been competent to introduce against them, to establish that, fact, the declarations of third persons made to the plaintiff in their absence. On this issue the testimony was *68hearsay, but for the purpose of showing whether as to the plaintiff, these defendants were known or dormant partners, it became necessaiy for him to prove that he had knowledge or information that they were.members of the firm. This knowledge or information thus became a relevant fact, and testimony offered for the purpose of establishing it must be tried alone by its competency as to this fact; and to this fact the testimony was not hearsay but original. But the plaintiff was not injured by its exclusion, for by it appears in the same deposition that the plaintiff, after the withdrawal of these defendants from the firm (if, indeed, they had ever been members), was informed by the commercial agency of Dun & Co., that the firm was composed of only Ricketts and the two Bristers. As against the estate of John Brister, the plaintiff was incompetent to testify. As to the defendants Hewett and Campbell, it showed that the plaintiff had information that they were members of the firm ; but it also showed that he had notice of their withdrawal before the debt sued for was contracted, and therefore its effect, if introduced, would have been, not to establish plaintiff’s right to recover, but it would have fixed the non-liability of the only defendants as to whom it was competent. The exclusion of the deposition was erroneous on the ground upon which it was rejected, but the plaintiff has suffered no injury and cannot complain.

The application for revenue license was properly excluded. As to the defendants who had denied their membership in the firm it was res inter alios acta, as to the others it ivas irrelevant. Taking the testimony actually given most favorably for the plaintiff, it ivas insufficient to establish airy other facts than that the defendants, Hewett, Campbell, and John Brister were dormant partners, both as to-the world at large, and to the plaintiff; that they had withdrawn from the firm long before the debt sued for was contracted, and were not liable therefor.

The judgment is affirmed.