Grafton Bank v. Moore

14 N.H. 142 | Superior Court of New Hampshire | 1843

Gilchrist, J.

The case finds in substance that there was a partnership transacting business by the name of Ellis, Little & Co. The first question presented is, whether Ellis can be proved to be a member of the partnership, by evidence of his admissions to that effect. The action was brought against the three persons who are alleged to constitute the firm, but the writ was not served upon Ellis or upon Little.

The case of Whitney vs. Ferris, 10 Johns. 66, is similar to the present case. Jonathan Ferris was impleaded with the defendant, as his partner, but no service was made upon him, nor was any service made upon Bostwick, the other alleged partner. It was held that the declarations and acts of Jonathan Ferris were evidence against him, that he was a partner with Bostwick and the defendant. In Clay vs. Langslow, M. & M. 45, which was assumpsit for work and labor, the defendant pleaded in abatement the nonjoinder of other parties. To prove that one Yerbeke was a joint contractor, the defendant offered evidence of his declarations made before action brought, that he was a holder of shares in the company of which the defendant was sued as a member. Abbott, Ld. Ch. Justice, received it, saying that whatever, in an action against him as a proprietor, could be evidence to prove him one, might be received on the issue before the court to prove him one. Ellis vs. Jameson, 5 Shepley 235, was an action of assumpsit on a note made by the defendant, and payable to Smith, Boody & Co. or order. It was indorsed to the plaintiff by one Stevens ; and the question was, whether Stevens were a member of that firm, and thus had authority to indorse the note. To prove that he wks a member of that firm, the plaintiff offered in evidence copies of several writs and judgments, wherein several persons, of whom Steven® was one, were sued as members of the firm, and suffered judgment to be rendered against them by default. The evidence was received, upon the ground that it proved an admission by Stevens that he was a partner.

There seems to be no objection in principle to the admission of the declarations of Ellis that he was a member of the firm. They are against his interest, and if he choose-to admit himself to be a partner, we see no objection to its being proved. The admissibility of such declarations as-were received in Clay vs. Langslow, before cited, has been denied in two American cases, Sweeting vs. Turner, 10 Johns. 216, and in Connecticut in an early case, Storrs vs. Wetmore, Kirby 203. But Clay vs. Langslow is referred to as law by Professor Greenleaf. Greenl. Ev. % 181. And we see no objection to it. But whether it be law or not, wears of opinion that the declarations of Ellis were admissible, both upon principle and upon the authorities cited. And in addition to those authorities, the case of Jennings vs. Estes, 4 Shepley 323, is in point. It is there said by Mr. Justice Shepley, that when a partnership is to be proved by the acts and declarations of those who are alleged to be partners, it often becomes necessary to prove those of one person at a time. And if it were illegal to do so, it would preclude the proof of a partnership by proving the acts and declarations of each party to the contract. And yet such testimony might clearly prove a partnership by the acts and declarations of each member of it, while each is bound only by his own acts and declarations.

The other question in the case is, whether the protest were competent evidence of the presentment of the bill at the Market Bank. If this were a foreign bill, the protest was evidence. Carter vs. Burley, 9 N. H. Rep. 566, and cases there cited. The inquiry then arises, whether the bill were a foreign bill or an inland bill. The only circumstance that can cause it to be regarded as a foreign bill, is that it was payable in-Boston. A bill, drawn in one State and payable in another, was held to be a foreign bill in the case of the Freeman’s Bank vs. Perkins, 6 Shepley 292. The decision is based upon the cases of Buckner vs. Finley, 2 Peters 586; Phœnix Bank vs. Hussey, 12 Pick. 483, and Green vs. Jackson, 3 Shepley 136. In those cases the bills were drawn by persons in one State upon persons resident in another, but it is said in Greene vs. Jackson, that the principle which governed them is equally applicable to bills drawn in one State and payable in another. The two latter named cases depend upon the authority of Buckner vs. Finley, from the reasoning in which case the principle is to be deduced. That reasoning is, that, with respect to their municipal laws, the States are foreign to each other, and therefore that a bill drawn by a person in one State upon a person in another State, cannot be regarded as an inland bill. One inconvenience that would result from regarding it as an inland bill, would be the necessity of proving, by depositions or witnesses, in every suit on such a bill, presentment and demand ; since the protest could not be given in evidence to prove those facts. That inconvenience would exist in the case before us, were the bill to be considered as an inland bill, and depositions or witnesses must be produced from Massachusetts to prove the presentment in that State. It may be truly said, in a just and liberal sense, that a bill of exchange is foreign which is not governed throughout by our own municipal jurisprudence, as an inland bill exclusively is. Story on Bills, § 22. In the case of Townsley vs. Sumrall, 2 Peters 170, it is said by Mr. Justice Story to be the general custom of merchants in the United States, that a protest is the customary proof of the dishonor of a bill of exchange drawn in one State upon another: that it is a practice founded upon general convenience, and has been adopted for the same reasons which apply to foreign bills in the strictest sense. Without determining, therefore, whether the bill were a foreign or an inland bill, it was held that wherever a protest is required to jix the title of the parties, or by the custom of merchants is used to establish the presentment or dishonor of a bill, it is competent evidence between the parties, who contract with reference to the presentment and dishonor of the bill.

It is unnecessary to determine any other question in the present case than that which relates to the competency of the protest. Whether the bill should be treated as foreign in all respects, need not now be settled. It is sufficient to say that the argument from convenience is strong enough to induce us to regard it as so far a foreign bill as respects the protest and proof, and to arrive at the conclusion that the protest was properly admitted in evidence. Wells vs. Whitehead, 15 Wend. 527. But in the case of the Bank of the U. S. vs. Daniel, 12 Peters 32, a bill, drawn and accepted in Kentucky, by residents of that State, but payable in New-Orleans, was held to be a foreign bill. It is said in that case, “whether a bill of exchange, drawn in one State of this Union, and payable in another, is a foreign bill, involves political considerations of some delicacy, although we apprehend of no intrinsic difficulty at this day. The respective States are sovereign within their own limits, and foreign to each other, regarding them as local governments. 2 Peters 586. Kentucky and Louisiana as political communities being distinct and sovereign, and consequently foreign to each other in regard to the regulation of contracts, it follows that a bill, drawn in one and payable in the other, is a foreign bill.” This is the first, and, so far as our researches have extended, the only case where the point is distinctly settled, except the case of the Freeman’s Bank vs. Perkins, 6 Shepley 292, before referred to ; and if it were necessary in the present case to determine that such a bill is a foreign bill in all respects, would fully authorize us to arrive at that result.

Judgment on the verdict.