55 Wis. 382 | Wis. | 1882
This action was brought upon a promissory note signed by J. S. Mabbett & Co., and it was alleged in the complaint that such firm consisted of the defendants, George Forster and Joseph S. Mabbett. The defendant Forster, in his answer, denied the partnership. To prove the partnership, the records and judgment roll in several mechanics’ liens and other suits, in which the said Forster and Mabbett yrere parties, but in which neither the payees nor holders of the note in suit were parties or privies, were introduced in evidence on behalf of the plaintiff, by which records it appeared that the defendant Forster had made a statement under oath, at different times before and about the’ time this note was given, that he and said Joseph S. Mabbett were partners.
There was some evidence on the part of the plaintiff tending to show that said Forster had otherwise acted as a partner with said Mabbett. It was not shown that any of the payees or holders of the note had ever had any knowledge of said records or statements, under oath, before the note was given or negotiated. The defendant Forster offered to show that his sworn statement in said records, that he was a partner of J. S. Mabbett, originated from a mistake, and through his ignorance of what constituted a copartnership, and offered to explain the same, which the court refused to allow him to do, in the following language'and ruling: “I don’t think it is legitimate for you to change the legal nature of the act, which is done beyond dispute; you must take it with its legal consequences. It speaks for itself. I think it is a solemn admission, and we won’t inquire into it.” The defendant’s counsel said to the court, “ Tou mean by solemn, conclusive?” and the court replied, “Tes, sir.”
But the learned judge made no mistake in his statement of the law, but a mistake of fact only, perhaps thinking, at
The case of Conklin v. Barton, 43 Barb., 435, cited by the learned counsel of the respondent, is that where one acts as a partner it is evidence of the partnership, but not conclusive.
The case of Van Orman v. Phelfs, 9 Barb., 500, is that a tenant in' common, who has procured a partition and stated under oath, in his petition therefor, that a certain other person was a tenant in common with him, is estopped from denying that he was such, in an action of trespass upon the premises and doing damage, against the servants of such other person, and recognizes the doctrine above stated.
The reference to 1 Greenl. Ev., §§ 22, 27, 205, rests estoppel by admissions in judicial proceedings upon the requisites that others are party or privy thereto, or influenced thereby, and estoppel by other admissions, upon the latter requisite alone. The principle is elementary that estoppel must rest upon one of these requisites. 1 Greenl. Ev., §§ 206, 207. And the learned judge who tried the case needs no correction on this question, for he stated the law correctly, as we have seen; and the error consists only in the application of it to a case where there was no proof that any of the persons holding this note were party or privy to the record admissions of Forster, or had any knowledge of them, or were influenced by them. The other alleged errors in the record need not be noticed, for they may not exist on the determination of a future trial.
By the Qowrt.— The judgment is reversed, and the cause remanded for a new trial.