Ford v. Kennedy

64 Ga. 537 | Ga. | 1880

Jackson, Justice.

Ford brought suit on an account against Gray, Kennedy & Chamberlin, as co-partners engaged in work on the Mobile and Girard Railroad, in the state of Alabama, under the alleged name and style of Gray & Co. Chamberlin was not served, Gray died pending the suit, and the contest narrowed to a single-handed fight between Ford and Kennedy as the only surviving partner sued and served. The jury found for Kennedy; Ford moved for a new trial, it was refused, and he excepted.

, The issues are, was Kennedy a partner in the company of Gray & Co.? If not, did he virtually become one as to third persons by holding himself out as a partner, so that credit was given Gray thereby on account of Kennedy having been considered a partner ? and especially, did he so act. as to authorize Ford to consider him responsible as a partner? and if Kennedy was a partner or held himself out as such, was not Ford also a partner of the same-firm and, therefore, not entitled to recover from the firm, the debts to third persons not having been paid ? and, if all these issues be decided for Ford and against Kennedy, is not the account barred by the statute of limitations ?

On the trial of these issues Ford alleges in his motion that the court erred in admitting and rejecting evidence, in charging the jury and, in overruling the motion and sustaining the verdict, though against the evidence and the law.

■ 1. First, as to the ruling of the court on the testimony. Gray being dead, was Ford" competent as a witness under the: Code, section 3854 ? Gray had been a party actually served. The suit went on against the surviving partner, and a judgment would bind the partnership assets in which Gray’s estate was interested. To the transactions between Gray, the deceased partner, and Ford, in the absence of the other partner, Ford was therefore incompetent, Gray being dead and his mouth shut. Mark, the attention of the .presiding judge was not called to the fact that Gray’s interrogatories had been taken and that the answers were in court. Under the facts disclosed in this record, the presiding judge did not err in restricting the testimony of Ford as he did, that is, in permitting him to testify (about what' passed between him and Gray touching the partnership) only to conversations in Kennedy’s presence. McGhee vs. Jones et al., 41 Ga., 123 ; 42 Ga., 120 ; 44 Ga., 46. And all sayings of Gray, in the absence of Kennedy, were properly ruled out.

2. The mere belief of Wells was also properly ruled out.

3. The sayings of Chamberlin about Kennedy being a partner, were inadmissible in Kennedy’s absence. The issue was whether Kennedy was or was not a partner, and that fact being in dispute, what others who acknowledged themselves to be partners merely said about it, is hearsay.

4. What Ford said about his, Ford’s, being a partner was admissible, just as what Kennedy said about his, Kennedy’s, being a -partner, was admissible; but what others said in their absence was hearsay.

5. The mere general understanding of a witness, not based on facts, is inadmissible.

6. Testimony was in that Gray had introduced Kennedy as his partner, and this was denied by Kennedy, who said that on the occasion referred to he was introduced as his old partner — they having been partners in a former venture. On this state of facts, the court allowed Kennedy to testify further that it was the habit of Gray and himself to introduce each other as “ my old partner,” and this is assigned as erroneous. It threw light, we think, on a point in dispute. Besides, Kennedy had positively sworn that- he was not’so introduced, and if the jury believed that, the other did not hurt — at all events, if error, it is so slight as to be considered harmless. These views will cover the exceptions as to testimony.

7. In respect to exceptions to the charge, we think that the court was right to tell the jury that the items of an account relied upon to take the whole account without the statute of limitations, must b& proven as well as charged on paper- — otherwise one might keep an account without the statute forever, by the mere addition of items without proof of their reality.

8. Nor do we think that it was the duty of the court to tell the jury that admissions, when clearly proven, became evidence of a high character. It was for the jury to weigh the testimony, and to give it that character to which its-weight entitled it. Our statute declares, in respect to the weight of such testimony, that “ all admissions should be scanned with care, and confessions of guilt should be received with great caution ” — Code, §3792. The court charged the first clause of that section in respect to admissions, and there left it. We see no impropriety in his having done so.

The exception to the charge in respect to the statute of limitations, was not insisted on here.

9. So we are brought to the ground that the verdict is-contrary to the law and the evidence, for the grounds that it is against the charge are merged in the higher-ground that it is against law.

While several witnesses testify to facts and circumstances- and admissions going to show that Kennedy was a partner' of Gray, yet Kennedy is sustained in his own sworn testimony by the contract between Gray and Blackman, which was in writing, and could not lie. That sets him out repeatedly as a mere surety, and supports his version of his relation to the contract. That bound him to see to it that Gray performed his contract with the railroad company,, but not to pay this debt which Gray owed Ford for supplies-So in regard to his holding himself out as a partner to Ford the testimony is conflicting, as well as in respect to the plea of defendant that Ford was himself a partner of Gray, and to the statute of limitations.

We think that the jury had evidence enough- to sustain the finding as legal, and no material error of law being made by the presiding judge, and the verdict being approved by him, it is not contrary to law, and the judgment overruling the motion for a new trial. is affirmed.

Judgment affirmed.