Carlton & Manning v. Coffin

27 Vt. 496 | Vt. | 1854

The opinion of the court was delivered by

Bennett, J.

It appeal's from the cross-examination of the witness, that the only knowledge he had of the existence of a partnership between the defendants, was derived from general reputation. We think this is not competent evidence to prove a partnership.

It was so held in Hicks v. Cram et al. 17 Vt. 449. Common reputation is but hear-say evidence, and this is not a case which allows of such evidence. Partnerships are like other contracts, and must be proved according to the ordinary rules of evidence. So far as third persons are concerned, it is not always necessary to prove a partnership in fact. If one man holds himself out as a partner with another by his permission, the latter will be bound.

It is quite another question, whether, in such a case, common reputation might be given in evidence, as tending to show that such holding out might have been by the consent and permission of the person sought to be charged. But in the case at bar the object was to prove the fact of partnership. Halliday v. McDougall, 20 Wend. 81; Bryden v. Taylor, 2 Har. & John. 396 ; and Brown v, Crandall, 11 Conn. 92, are full in point against the admission of such evidence, even in connection with other facts to which there can be no objection.

The fact that the witness stated that he had occasion to examine the conveyances, and that he knew from them, who were the owners, is no evidence to prove a partnership. The witness cannot tell whether a written paper contains facts to create a partnership. This is a question of law. This was all the evidence, and from this, the bill of exceptions says, the county court found a partnership. We think there was no legal evidence before the court tending to prove a partnership, and though it does not appear that, on the trial, the competency of the evidence was objected to, yet as the party excepted to the judgment rendered upon this evidence in the county court, we think he can raise the question on this bill of exceptions.

In respect to the plea of the statute of limitation, we think, as the case stands, the statute had run when the suit was commenced.

It is said in argument that no new promise will have any effect to avoid the statute of limitation, unless it has actually run at the time of the new promise; but such is not the law of this state, however it may be in Pennsylvania; and it has been well established in our courts that a part payment by one joint promissor of a note, will take the case out of the statute as to all the promissors upon common law principles.

But our revised statutes of 1839 changed the rule of the common law. By the 22nd section of Comp. Statutes, page 380, it is provided, that .if there are two or more joint contractors, no such joint contractor- shall lose the benefit of the provisions of the statute, so as to be chargeable by reason only of any acknowledgment or promise made or signed by any other or others of them, and the 26th section extends the statute so as to enable one joint contractor to avail himself of the statute, though a part payment may have been made by another, and we think it cannot be material, whether the payment is made before the statute has fully run or not. It was evidently the intention of the legislature to change the rule of the common law, and to prevent the promise or part payment of one joint promissor from having effect against another, and the language of the statute extends equally to both cases, and renders it immaterial at what time the promise or part payment is made ; and we think it was not the intention of the legislature to limit the operation of the statute to cases where the bar was complete, when the promise or part payment was made.

Judgment reversed and cause remanded.