54 P. 190 | Or. | 1898
delivered the opinion of the court.
This is an action to recover upon two promissory notes,— one executed September 9, 1893, by Saling & Oo. to the plaintiff for $2,500, and the other March 23, 1893, to Joseph Zigman for $565, and by him indorsed to plaintiff. It is alleged that, during the times named, I. E. Saling, Frank Saling, and P. A. Worthington were partners doing business under the firm name of Saling & Co. I. E. Saling, by separate answer, controverts the plaintiff’s allegation that he was a partner of the concern ; and upon this issue all the questions presented for our determination arise, except one involving the discretion of the court to allow an amendment of the complaint touching the date of one of the notes sued upon.
George A. Hartman, a witness for plaintiff, testified substantially that he was a director in the plaintiff bank ; that he knew the members of the firm of Saling & Co. in 1891, 1892, 1893, and 1894, and that it was composed of I. E. Saling, Frank Saling, and P. A. Worthington. On cross-examination he said he knew such to be the fact because he had some business with them, and their stationery and billheads indicated as much. The examination developed a contention that there were two firms doing business in Weston, — one under the name of Saling & Co., and engaged in merchandising, composed of Frank Saling and P. A. Worthington, and the other doing a milling business composed of I. E. Saling, Frank Saling, and P. A. Worthington, but it was questioned whether it did business under the style of the Weston
The question upon which the third assignment of error is based follows quite naturally from the one discussed. After the possible existence of the two firms had been mooted, it was pertinent evidence to go to the jury touching the identity of the firm to which the money was loaned. As it respects the form of the question, “Whom did you understand you were loaning the money to ?” it would seem to be unobjectionable. The inquirer was seeking for the knowledge of the witness, and used the word “understand” for the ascertainment of that fact. It was not a question of opinion, common rumor, or rep
Subsequently George Proebstel was called as a witness for plaintiff. He testified, in substance, that he was a director of the plaintiff bank, and was such director at the time the money was loaned to Saling & Co. The following colloquy then occurred : “ Q,. Do you know— and, if so, state — who composed the members of the firm? By counsel for defense: Q. First, do you know who comprised the members ? A. I think I do ; I have good reason to believe that I know. Q. You believe you know? A. Yes, sir.” Objection was then interposed to the witness answering touching the membership, but, being overruled, he stated that P. A. Worthington, I. E. Saling, and Frank Saling composed the firm. In this connection we may consider the eleventh, twelfth, and thirteenth assignments. I. J. Price, as a witness for plaintiff, testified that he was a director of the bank, and then as follows : “ Q. State, if you know, who composed the members of that firm. A. I could not positively state. Q. Have you any reason for knowing? A. Nothing, only from observation, — the actions of the parties. Q. Have you ever seen any letterheads or billheads that indicated who the partners were? A. Yes, sir; I have seen a good many letterheads and billheads. Q,. Have you done business with the concern? A. Yes, sir. Q,. Now, from your observation and the letterheads and billheads which you have seen, who do you say were the partners in the concern,— and also taking into consideration the business transactions which you have had with the concern? A. Well, according to the bill-heads, it would be pretty hard for a man to tell who was. Sometimes it is Frank Saling, P. A. Worthington, Bullfinch, and sometimes it is Press Worthington or P. A. Worthington, Frank Saling, and I. E. Saling, and Frank
It is insisted that these questions call for the belief or opinion of the witnesses, and not for their knowledge, and were therefore incompetent to prove the fact of partnership. It may be premised that a partnership association is proven as any other fact. If not susceptible of direct proof, it may be established by circumstances which may lead to a belief of the existence, such as participation in the profits, the acts of individuals in the apparent discharge of firm business, advertisements purporting to contain the individual names composing the firm, with knowledge of the party sought to be charged, and the like ; and especially is this true where it is incumbent upon a third party to affirm the existence of such relationship. As a general rule, common rumor or reputation, and the belief or opinion of witnesses based upon hearsay, is not competent evidence to establish the fact: Hicks v. Cram, 17 Vt. 449; 2 Rice on Evidence, § 451; Adams v. Morrison, 113 N. Y. 152 (20 N. E. 829). There is nothing in the examination of either of these witnesses to indicate that general reputation or common rumor touching the membership of the concern was sought for. The witness Proebstel believed that he knew, while Price was asked, from his observation, and the billheads and letterheads which he had seen, taking into consideration the business transactions which he
In Seekell v. Fletcher, 53 Iowa, 330 (5 N. W. 200), the witness was asked the following question : “ Now I will get you to state again, from the manner of their dealings with you prior to the execution of this note, whether or not it was understood by you at the time that they were partners or not.” And he was permitted to answer, and was sustained by the supreme court; Roth-
The twenty-seventh assignment illustrates very well
But upon redirect examination, which i§ comprehended by the fourteenth assignment, it was more than harmless error to permit- plaintiff’s counsel to ask the witness Price whether he had any reason to doubt that I. E. Saling was a partner in the concern. There was nothing in the cross-examination to provoke such a question, and it was the equivalent of saying in a short-hand way that the matter was of such universal notoriety that everybody so understood it. Hichs v. Cram, 17 Vt. 449.
Again, witness was asked on whose faith and credit he left certain money on deposit with the firm, to which he answered, “Mr. I. E. Saling.’’ The same question, in purport, met with the disapproval of the court in Danforth v. Carter, 4 Iowa, 230, 236. This latter exception is saved by the fifteenth and sixteenth assignments.
The twenty-eighth and twenty-ninth assignmezits are based upon the following questions propouzided to Charles M. Pierce upon a redirect examination, viz. : “Is it not a fact that everybody that talked about the con
Assignment 5 arises upon the introduction of the sacks and billheads in evidence, containing the advertisements, “Western Roller Mills,” and “Saling & Co., Proprietors,” etc., heretofore referred to; and the objection is placed upon the ground that they were not shown to have been in use at the time of the execution of the notes in question, but at a subsequent date. The letterheads appear, from letters written under them, to have been in use some six months later, but it does not appear so definitely as it respects the sacks. However this may be, there was other testimony tending to show the existence of the firm composed of the specified membership at the date of the execution of the notes; and it was not improper to admit the sacks and letter and billheads as corroborative thereof, notwithstanding their use by the firm could not be traced to the exact date of the transaction. See 2 Bates, Partn. § 1159; Fleshman v. Collier, 47 Ga. 253 ; Cowan v. Jackson, 20 Johns. 176.
Assignments 21, 24, and 25 refer to the admission of Exhibits 0, H, E, F, G, and H in evidence over defendant’s objection. D and E are the notes sued on, and C, F, G, and H are letters written six months or more later upon letter paper containing the letterhead advertisement above referred to, signed “ Saling & Co.” The signature to the notes and the signature to these letters appear to have been written by the same person,— proba
Assignments thirty-one and thirty-two arise, the first on defendant’s motion for a nonsuit when plaintiff had rested, and the second upon the order allowing plaintiff’s motion to amend the complaint as to the date of the execution of the $2,500 note so as to change it from September 9, 1892, to September 9, 1893. Worthington, when called as a witness for defendant, produced a note calling for $2,500, bearing date September 9, 1892, which Avas shown, by a stamp impressed upon it, to have been paid; and'thereupon plaintiff asked leave to amend, assigning as a reason therefor that the pleader had made a mistake in the date of the note, and leave was accordingly granted. So far as the nonsuit is concerned, it is apparent from Avhat has already been said that there was evidence produced by the plaintiff pertinent to go to the jury touching the individual members composing the partnership, which presented a controversy in the trial. The motion therefor was therefore properly overruled, nor was there error, in permitting the amendment complained of. It could have wrought no injury or inconvenience to the defendant, because he was perfectly aware of the exact situation from the very beginning ; and besides the trial had not closed, so that any evidence
It is urged that, because there once existed a note exactly suited to the description of the note contained in the complaint, it was improper to allow an amendment so as to describe another and an entirely different note; but we are unable to see why such a condition presents a barrier to the correction of a palpable mistake. There was a very material difference in the notes ; one being cancelled, and the other an existing obligation. The mistake was concerning the outstanding obligation, and it can make no difference that the description intended to designate it as the one sued on happened to fit some other obligation, whether cancelled or not. The defendant not being misled to his prejudice, the amendment was “within the discretion of the court. Courts are always liberal in allowing amendments to pleadings in the furtherance of justice, — a practice so familiar that it is unnecessary to cite authorities in its support. The amendment was resisted upon the authority of Mendenhall v. Water Co., 27 Or. 38 (39 Pac. 399); it being contended that the trial court was without authority to allow it. The case is in point, but it only decides that in that particular instance there was no abuse of discretion in not permitting the defendant to amend after his evidence had gone in under objections before a referee. What was said respecting the court’s authority to allow the amendment was through inadvertence, and is not controlling, as the question considered was not one of power in the court to make it, but one purely of discretion, and whether there had been an abuse of it. In this view the
Assignment forty-six has reference to an interrogatory put to Worthington touching a supposed conversation he had with one F. M. Anderson for the purpose of laying the foundation for the witness’ impeachment. It is objected that the attempted impeachment was upon an immaterial matter, and it was suggested that what witness might have said concerning the partnership could not bind the defendant I. E. Saling, unless he was present and heard the conversation ; but the witness had testified that Saling was not a member of the firm, and, if he had made statements out of court of contradictory tenor, the matter was both relevant and pertinent, not for the purpose of binding Saling, but for the impeachment of the witness by showing contradictory statements.
The forty-seventh assignment is based upon the objection to a question put to the defendant’s witness Worthington upon cross-examination, as follows : “ What did you do with that land ” ? It had been developed' that Saling & Co. had disposed of their stock of goods and had taken some land in exchange ; and the question concerned this land. It was not without the sound discretion of the court to allow the question on cross-examination, and surely it was perfectly harmless in any event.
The sixty-third assignment concerns the following instruction given by the court, viz. : “I instruct you that notice to the cashier of the bank is notice to the bank, in transactions conducted by such cashier, acting in good faith for the bank, within the scope of his authority, whether his knowledge was acquired in the course of the particular dealing or on some prior occasion, provided the knowledge is so recent and so circumstanced in other respects as to render it reasonably probable that it was still present in the mind of the cashier when acting for
It is admitted on all sides that the instruction as requested is sound in principle, and the dispute concerns the interpolation only, and we are convinced that it was error. As a feature of the case, it was submitted to the jury whether the defendant I. E. Saling had so conducted and held himself out as to superinduce the belief that he was a member ; and, if so, they were instructed that Saling would be bound, whether he was in reality a member or not. And it was suggested at the trial that there was some collusion between Worthington, an admitted member of the firm of Saling & Co. and Davis, who had formerly been in the employ of Saling & Co. as clerk, and was the cashier of the plaintiff bank at the time the loans were made, to defraud the bank ; and this led to the request for the instruction, in order to convey to the jury the idea that, if the bank had actual knowledge that I. E. Saling was not in reality a member of the concern, it could not be excused for acting upon appearances, or could not found a case upon estoppel, and that knowledge of its cashier in that regard was knowledge of the bank itself. Whether there was collusion or not, the plaintiff has adopted the acts of its officer and agent by seeking to enforce the obligations growing out of the transactions,' and must be held to the results which would ensue upon the consummation of a good-faith
Many assignments have not been considered. A large proportion of them, however, are covered by those that have been, and those remaining of lesser importance may not arise again upon a retrial. Reversed and remanded.
Reversed.