Gay v. Fretwell

9 Wis. 186 | Wis. | 1859

By the Court,

Cole, J.

We are of the opinion that the circuit court very properly refused to permit the appellant to prove, by the witness, Brightman, in what manner and in whose name the business was conducted, after the appellant went into possession of the mill property, since all these matters related to a time after Gay had left the premises, and even that part of the country, and had gone to the state of Iowa, whence he never returned Now had Gay been about the mill giving his personal attention to the business, and where he would have known of the acts and declarations of the appellant, and of his manner of conducting the business, there might be some reason for holding that the evidence offered was admissible for the purpose of establishing a partnership between the parties. For then it might, with some force of reason, be contended that if Gay knew that the appellant was making these declarations in reference to his being a partner, &c„ and that the appellant was conducting the business as though a partnership really existed between them, yet did not contradict the assertions thus made, nor change the method of doing the business, but acquiesced in it; that it was fair to presume that he would not have done so unless the partnership had in fact existed. But this was not the case. Gay could know nothing about the fact that the appellant was holding himself out as his partner, and certainly had no means of knowing how the appellant conducted the business, and therefore to permit the appellant to give this evidence to establish the partnership, was simply enabling him to manufacture testimony for himself. In other words, it was permitting him to give his own unsupported declarations and acts in evidence, in his own favor, to prove a partnership, which would be in violation of the plainest and most wholesome rules of evidence.

It was suggested by the counsel for the appellant that this evidence ought to have been admitted, since it was the best which could be given to establish the fact of partnership. It might perhaps be the best evidence in the appellant’s power to offer; but still that is no reason why he should not be required to make out his case by legal and competent testimony.

These same observations equally apply to the ruling of the circuit court, excluding the testimony of the witness Lang-don, by whom the appellant offered to prove what the general report was as to Gay and he being partners in the lumber and mill business, in the neighborhood where the mill was situated, even if general reputation were admissible in evidence, in aid of other testimony to prove a partnership, which proposition we do not wish to be understood as affirming. See Scott vs. Blood, 16 Maine R., 192; Tuttle vs. Cooper, 5 Pick., 514; Robbins vs. Willard et al., 6 id., 464; Whitney vs. Ferris, 10 J. R., 66; Sweeting et al. vs. Turner, id., 216; Smith vs. Griffith, 3 Hill, 333. Yet this obviously should relate to a time when Gay was in the neighborhood and having some personal knowledge of the business and of those matters which went to create the impression on the mind of the public that they were partners.

The only other question remaining necessary to be noticed, is as to the correctness of the ruling of the circuit court in refusing to give the second special instruction asked for on behalf of the appellant By that instruction the court was requested to charge the jury that, if they believed from the evidence in the case, that the appellant had made advances for the purpose of cutting, running and hauling these logs, and had bestowed labor in cutting and hauling the same, and had the possession of them at the time the suit was commenced, that then he had a lien upon them under the law, and was entitled to the possession, until his lien was discharged. The court gave this instruction substantially, but stated to the jury that no such defense was set up in the answer or embraced in the issue.

In his answer the appellant claimed to hold possession of the property in controversy, as surviving partner of the firm of Gay & Fretwell. He set up no claim to the possession of such property because he had made advances upon it, or bestowed labor upon it. If he relied upon his lien upon the property he should have laid the foundation for his proof in his answer aud framed it accordingly. But to permit him, after failure in his case, as set up in his answer, to change his position and insist upon his right to hold the possession of the property on some other ground, of which he had given no intimation in his pleading, would naturally take his adversary by surprise, and might work the greatest hardship. We therefore think the circuit court might have refused to give this instruction at all, as being irrelevant to the issue being tried.

We think the judgment of the circuit court should be affirmed.