Currier v. Robinson's Estate

61 Vt. 196 | Vt. | 1888

The opinion of the court was delivered by

Tyler, J.

As stated in the briefs of counsel on both sides, the main controversy in this ease was whether or not the intestate, Lucius Robinson, was in his life time a silent partner in the firm of Foster & Baker and as such partner liable to the plaintiff for materials furnished and labor performed by him for the firm. The written agreements were important evidence bearing on this question. In considering the matter of their construction it is necessary to understand how the case had proceeded prior to their production in evidence and what they were intended to operate upon. It is stated in the second paragraph, page third of the exceptions, that it appeared that it was in the first instance agreed between these three parties that the contract should be taken in the name of Foster & Robinson, but, as Robinson was a director in the Missisquoi and Clyde Rivers railroad corporation and president thereof, so that he could not appear as contractor, it was suggested that Baker’s name be substituted for his and that it was so done with the assent of all three. Here is certainly a strong indication that Robinson was interested in the contract, although his name did not appear therein for the reason stated. Baker testified positively that the three were equally interested. In paragraph second on page second it is stated that it appeared from the testimony of Baker, which testimony was not contradicted, that, “ before the formation of •this arrangement between these three parties an understanding had been arrived at,” etc., and in the next paragraph it is said that it appeared “ that after said arrangement had been entered, into between these three persons and the work in Richford begun under it, Foster became dissatisfied with it and refused to go on unless some new understanding could be arrived at between them by which he should be.sole owner of the M. & C. R. railroad when, completed, and that such negotiations were had in the premises that the relations of the said three persons were adjusted on a new basis,” etc. We infer from what the court said to the jury* as appears on the thirteenth page of the exceptions, that it was practically conceded by defendant’s counsel that but. for the written agreements the case showed Robinson to be a contractor and liable to the plaintiff for the amount of his specification.

Assuming that the three were co-partners up to the time of the execution of the agreements the court should have instructed the jury what effect the agreements had upon the partnership. In the submission of the agreements to the jury for their construction there was error. We cannot assume that the jury construed the agreements correctly, for if they found an original partnership and a dissolution thereof by the written agreements, non constat they may have found that the three parties subsequently became co-contractors as to the plaintiff. If, however, the legal effect of the agreements was to dissolve the then existing partnership it was error that did not harm the plaintiff. Upon a careful examination of the agreements we can give them no other reasonable construction than that the “ new basis ” upon which the relations of the parties were adjusted was that Robinson and Baker were to be allowed and paid the amount of money they had actually paid out for and on account of the M. & O. R. railroad, and that the three men Were to have the sum of $12,000 each from the cash received from the Conn. & Bass. R. R. or stocks or bonds to that amount, and the said Foster was thereafter to be free from any further demands or accounting to Baker or Robinson in respect to such contract, although the firm name was continued.

This being the obvious meaning of the agreements, the error of the court was one of which the plaintiff could not complain.

2. In view of Baker’s testimony that the three men continued liable for all contracts entered into in the name of the firm, notwithstanding the written memoranda, it was clearly within the legitimate scope of cross-examination for the defendant’s ••counsel to ask him what he understood the relations of the three persons were after the execution of the written memoranda. The question did not require him to construe the memoranda, but it was proper in that way to test the truthfulness of his -testimony that Robinson’s liability continued after the memoranda were executed, the plaintiff’s claim having subsequently •accrued.

3. As tending to establish Robinson’s liability as a silent ■partner the plaintiff produced evidence which showed that the three men were jointly sued for payment for labor performed ;and materials furnished the firm in the construction of the road in the towns of Richford and Newport, and that judgment was •obtained against the three jointly as co-contractors. The defendant undertook to rebut this evidence by proof that Stimpson & Co. had a claim of one thousand dollars against the firm, and •that although Robinson was financially responsible, only a part of this claim was paid. John A. Prouty, who was a member of •the firm of Stimpson & Co., was allowed to testify, subject to plaintiff’s objection, that this claim of his firm was only partially paid. It would have been improper to have admitted the evidence offered that other creditors of Poster & Baker suffered their claims to outlaw or settled them at a discount, as tending to establish the fact that Robinson was not a partner, and the •court so held. The answer of the witness, Prouty, that the debt of his firm was “ partially paid ” had no bearing on the main question in issue.

4. According to Baker’s testimony, Robinson was liable on all these contracts of the firm. As testing the correctness of his testimony it was competent to show by him on cross-examination how he as a partner had conducted with reference to other claims against the firm for which Robinson was liable if liable for any. The witness had stated that he did not remember what per cent he paid on these claims in settlement thereof and •counsel then asked him if it was fifteen per cent. This question and the entire cross examination were proper as tending to show that his compromise of these claims was inconsistent with his •statement as to Robinson’s liability.

5. As to the application of the land and stock the court instructed the jury that if the property were -Robinson’s, or lie was interested in it as a member of the firm, or if not interested in it, he treated it as his own and directed the application of it updn the plaintiff’s debt in such a manner that the plaintiff' might reasonably understand it was a payment, it would be a .renewal of the debt as to Robinson, otherwise it would not. This was a correct statement of the law and was certainly favorable to the plaintiff.

6. As to the testimony of the administrator : The point of' Baker’s testimony was that Robinson as a partner in the firm of Foster & Baker had admitted to him that he had been doing-some business with th,e plaintiff in reference to certain notes and that he had made him a payment on the railroad account. It is. true that the witness was not inquired of specifically as to the twenty-five dollar payment, but this was not so far collateral that the defendant was bound by his answer.

7. In his address to the jury, defendant’s counsel made-improper use of the testimony of the two witnesses Avho Avereimproved by the defendant to impeach the witness Baker.. Upon objection by plaintiff’s counsel the court interposed,. “ whereupon said counsel disclaimed any intention to give the-jury to understand that said testimony could be given such effect and did not further so claim.” While courts cannot be too careful in restricting the arguments of counsel to legitimate evidence, in view of the immediate disclaimer of counsel we think the plaintiff was not injured and that this exception should not be sustained. The ground for it is not stronger than that in> Rea v. Harrington, 58 Vt. 181.

The other exceptions taken were not insisted on in the argximent. We find no reversible error in the trial and the judgment is affirmed.