14 Pa. 469 | Pa. | 1850
The opinion of the court was delivered by
— The note here in suit was made bn the 10th of October, 1836. But it was a continuation, by way of renewal, of a series of notes, first discounted by the Exchange Bank of Portland, on the 10th of May, 1834. Under the evidence, it is not to be doubted these renewals were effected by Mudge, as liquidating
This, however, is perhaps of minor consequence. Upon the trial, the leading inquiry was as to the fact of dissolution, and whether, if that fact existed, notice of it was traced to the holders of the first .note discounted ? The plaintiff submitted there was no evidence of dissolution, and, of course, no notice thereof, at least before the 10th of May, 1834. To this the court answered, “There is evidence that the store was transferred, and that the firm ceased to do new business.” No direct response was then given to the latter portion of the point relating to notice. But in a previous part of the charge, the jury was, in effect, told that an inference of dissolution might be drawn from the sale and transfer, in January, 1834, of Mudge & Clarke’s store to Mudge & Varnum, who continued the business of the former firm, and that notice of the dissolution might be imputed to Dr. Cummings from his residence in the same town at the time of these transactions. The only additional circumstance connected with this point of the case, is that the books of the older firm were placed in the hands of the younger, who collected the sums due to the former, for which a credit was
The view taken of the principal point in controversy, reduces to comparative unimportance the question arising under the bills of exception to the admission and rejection of evidence. It is, yet, proper to indicate our opinion in reference to them, as, upon another
We think, then, the evidence which is the subject of the first, second, and third bills, was properly received. It was relevant, for it established certain facts which tended, in some degree at least, to show a dissolution of the partnership in December, 1883, or early in January, 1834. It is not enough to object that, of itself, it was altogether too slight to lead to so grave a conclusion. If it could, possibly, be illustrative of other facts pointing to a dissolution, or corroborative, in the least degree, of other testimony, the objection of irrelevancy is answered. The assertion, that the witnesses’ knowledge was derived from a secondary source, was very faintly, if at all, urged on the argument. The forbearance was very pro-’ per, for the objection is not well founded. The witnesses speak of facts with which they became acquainted in the course of their business. They may have refreshed their recollections by consulting their books of accounts and the newspaper published by them, but this, it is almost needless to say, is permissible.
The same reasons that justify the reception of the evidence just considered, condemn the rejection of that subsequently offered by the plaintiff, mentioned in the fourth and fifth bills of exception. That Mudge & Yarnum collected debts due to Mudge & Clark, in their firm name, and paid debts owing by them, under circumstances showing the assent of the present defendant, after the alleged dissolution of the partnership, was certainly a fact for the jury; and I should say an important one too. Its bearing upon the disputed question I have already, incidentally, adverted to.
The transaction detailed by Phineas Yarnum was excluded solely on the ground of its having been inter alios acta. It appears to us it was not obnoxious to this objection. There was no attempt to introduce a fact or record, for the purpose of concluding the defendant by way of estoppel. The object was, simply, to show a transaction in which he was an actor, inconsistent with his allegation of a prior dissolution of partnership, and want of authority in Mudge to sign promissory notes in the name of the firm. If the note spoken of by Yarnum, was actually signed by Clark in the name of the firm, it was an express acknowledgment by him of its continued existence so late as 1837. If it was signed by Mudge and afterwards recognised by Clark, it affords at least some evidence of continued partnership. Doubtless, it is open to explanation which might neutralize its effect. But this possibility, of course, creates no impediment to its introduction. In contests like the present, similar facts are frequently adduced as furnishing legitimate sources of inference. Indeed, a very common mode of establishing the fact of copartnership is to show the doings of the alleged partners with third persons. Sometimes, these constitute
In answer to a proposition made on the part of the defendant, to the effect that if Brown, the plaintiff, has no actual interest in the note in suit, he cannot recover in this action, the court answered, if the jury was satisfied that Brown had an interest to the amount of $300, and is a trustee for Varnum, he might maintain the action. This answer, by implication, affirmed the defendant’s point. It is very probable no actual injury was inflicted, as, in all likelihood, the cause was decided against the plaintiff on other grounds. But, possibly, it may have been otherwise; and, consequently, the point is entitled to consideration.
A slight examination of authority shows it to be an established rule that, in an action on a negotiable instrument, the defendant has no concern in the question of actual ownership, except where the defence turns upon points involving the personal conduct of the true owner, or those who preceded him. In Gage v. Kendall, 15 Wend. 641, it is laid down that the owner of a note endorsed in blank, may fill it up with what name he pleases, and the person whose name is so inserted is deemed, on record, the legal owner, for all the purposes of action. Our own cases accord with this doctrine. It mattered not, therefore, to Clark, whether Brown has an actual interest in the note or not. Had the precedents been brought to the notice of the trying tribunal, such would, doubtless, have been the instruction given. In the hurry of trial, this peculiarity of the law merchant was overlooked.
Judgment reversed and a venire de novo awarded.