Fowler v. StevensFowler v. Stevens
- Reporters:
- Before:
- Manning
The opinion of the court was delivered by
Manning, C. J.Thе plaintiffs’ sue the defendant, as surviving partner-of the сommercial firm of L. W. Lyons & Co., on an account for merchandise sold and delivered. The defense is that no partnership existed between L. W. Lyons and the defendant, but the latter was merely an employee of the firm of L. W. Lyons & Co., which had but one member; i. e., Lyons.
The question of partnership vel non, as dependent upon and cоntrolled by the nature and effect of the agreement, does not enter into this case. The defendant has precluded himself from denying that he was a partner by his judicial admissions and his sworn statements on recоrd.
Lyons died in 1867, and in the same year defendant presented his petition to the Second District Court of Orleаns, signed by himself, commencing thus: “The petition of Henry B. Stevеns respectfully represents that, as the surviving member оf the late commercial firm of L. W. Lyons & Co., he is entitlеd to the liquidation of the same,” etc. The prayеr is that he be “ appointed and qualified as liquidating partner of that firm,” and the order of court confоrms to the prayer of the petitioner.
A year later he presents his provisional account to the court, and describes himself as the “ liquidating partnеr of the late commercial firm of L. W. Lyons & Co.” Thesе are not mistakes of description by counsel. This petition, like the other, is signed by himself. On the trial, some months lаter still, wherein the homologation of the account is asked, he is a witness, and says: “ I am the liquidating partner of the late firm of L. W. Lyons & Co.”
These judicial admissions unalterably determine his liability in the capacity in which he is sued by the plaintiffs. His evidence to the contrary cаn not now be heard. He can not be permitted to impugn what he has thus solemnly and repeatedly assеverated in judicial proceedings to bo true. But sоme of Ms answers on the trial of this cause impliedly and inferentially admit the partnersMp. Thus, replying to the question if any of the creditors of the firm ever knew Mm as a partner, he says: “No, I don’t think any of the creditors knew that I was in the concern *354until after his (Lyons’s) death.” And the agreement of Lyons and Stevens, which the latter introduces in evidence to show that there was no partnership between them, stipulates that Stevens shall nоt “indorse any paper or go security for any one in his own name or that of the firm.” There can be nо doubt of the defendant’s liability, and so thought the lower сourt. A remittitur of interest by reducing the rate has been vоluntarily made by plaintiffs.
It is therefore ordered, adjudged, and decreed that the judgment of the court a qua be аmended so as to reduce the rate of interеst from seven to five per centum per annum, and, as thus amended, it is affirmed with costs.