41 Ill. 28 | Ill. | 1866
delivered the opinion of the Court:
This was an action of assumpsit, brought by Francis Singer against Solomon Degan, Jacob Degan and Samuel Degan, as partners, to recover damages on the breach of a contract for the purchase of seventeen head of cattle. It is claimed that they purchased the cattle at eight cents per pound, live weight, in Chicago, to be paid on delivery, but that when appellant offered to deliver the cattle, appellee refused to receive and pay for them, whereby appellee sustained damage.
Samuel Degan pleaded the general issue. Solomon and Jacob pleaded, in abatement, that they were not partners with Samuel, but were partners as between themselves, under the name of Sol. Degan & Brother. Appellee filed a replication, that they were partners with Samuel; and on this, issue was joined. A trial was had by the court and a jury, resulting in a verdict in favor of plaintiff for the sum of $325, upon which, after overruling a motion for a new trial, judgment was rendered. To reverse which this appeal is prosecuted.
The first question presented is, whether the court below admitted improper evidence. It is insisted that the statements and admissions of Samuel Degan were not admissible under the issues as they were presented for trial. He, by filing the general issue, admitted the partnership so as to bind him, but the issue was whether the others were partners. And it is manifest that his admissions could not prove a partnership against the other defendants, any more than he could thrust himself upon them and become a partner against their will. His declarations were of course binding upon him, but not upon the other defendants. To bind them so as to affect their rights, we must look .to their acts and declarations, and not those of other persons. Under these issues, the declarations of Samuel were not, of and within themselves, admissible in evidence.
It then follows, that the tenth and thirteenth modified instructions were improperly given for appellants. These declarations were not evidence, whether supported or unsupported by other testimony. If there was other evidence of a partnership, it should have been left to the jury as evidence. It is true, that, where such declarations are made in the presence of a person sought to be held as a partner, and they are not denied or contradicted, the fact that they were not becomes evidence for the consideration of a jury. But not because the admission was made by the party making the statement, but because it was not denied by the party against whom it was made. If Samuel Degan stated in the presence of his brothers that he was their partner, and they failed to contradict the statement, such fact should have been left to the jury, to determine whether their silence amounted, under the circumstances, to an admission by them, and, if such were the case, the jury might have been so informed.
The judgment of the court below must be reversed and the cause remanded.
. Judgment reversed.