61 Vt. 619 | Vt. | 1889
The opinion of the court was delivered by
These three cases all involve the same questions,.. and will therefore be considered together.
The first and third were brought before a justice pin both defendant Bruce defaulted and judgments, were rendered upon
So that in this respect they stand on the same footing as case number two, which was brought originally in the County Court. Judgments were there rendered in all three cases against defend-ant Bruce by default; they were referred and tried by the referee •as between plaintiffs and defendant Mallory; judgments were rendered on the reports in favor of plaintiffs for the sums claimed and the cases come here on exceptions to the reports.
At the hearing before the referee claim was made by the •plaintiff that defendants were co-partners, and declarations of Bruce made to the plaintiffs' were admitted in evidence as tending to establish this fact. Such declarations, while they might have been admissible as against Bruce himself, were clearly not • so as against Mallory, and to admit them was error. Cottrill v. Vanduzen, 22 Vt. 511; Noyes v. Cushman, 25 Vt. 390. But the error proved to be harmless, for the referee finds that defendants were not partners, and it does not appear that the ■evidence was offered or considered for any other purpose.
Other evidence in the three cases, to which no objection was taken, bears upon defendants’ relations to each other. It was ■shown that Mallory resided at East Montpelier, and that Bruce was sent to "Wolcott to have a general oversight of Mallory’s business there; that he controlled and managed it generally while Mallory himself had but little to do with it; also that Bruce was not responsible and that what property he had was ■chattel mortgaged to Mallory; and in all three cases it is found that in consequence of directions received from Bruce, plaintiffs’ charges were made to Bruce and Mallory; that in each case this was subsequently brought to the attention of Mallory and was ratified by him; so that although not a general partner with Bruce, he yet assented to being held jointly responsible with the latter on this account.
We are not called upon to speculate as to what, the result might have been, if Bruce had chosen to appear and defend on ■the ground that the relation between himself and Mallory was «that of principal and agent, that the charges would have been ■made to Mallory alone, and that by ratifying his acts the latter ¡rendered himself solely responsible as a principal.
This defense, which might have been urged in behalf of Bruce, is not available to Mallory until he shows that his rights are in some way prejudiced.
Nor is the statute of frauds available to him. These contracts are not promises to pay the debt of another, but original undertakings assumed on the part of defendant Mallory by adoption and ratification of the acts of his joint contractor.
The result is, that judgments in all three cases are affirmed.