213 N.W. 145 | Mich. | 1927
George Harrington, now deceased, and defendant were at one time partners, conducting a store in Port Huron. They filed the certificate of partnership required by 2 Comp. Laws 1915, § 6354 et seq. This is not disputed. It is likewise without dispute that Harrington gave his notes to defendant for the interest he acquired in the business. After the death *110 of Mr. Harrington, these notes being in the possession of his widow, she sent for defendant and he went to see her. There is practically no dispute as to what conversation took place between them. Mr. Havey explained to her that the notes were given by her husband for an interest in the business; that he had carried them several years, but deceased was unable to pay them, and that several years before her husband's death they were surrendered to him and he in turn surrendered his interest in the business, and thereafter worked for wages. She was not entirely satisfied with this explanation, but did say:
* * * "She guessed it must be all right for Mr. Harrington never had any money to pay any notes; if I remember right she said some money she made herself went to keep up the house."
Later this bill was filed for an accounting.
On the hearing questions arose on the admission of testimony which should first be considered. Plaintiff called as a witness one Hess, who had been clerk in the store for a number of years, and who testified that on one occasion defendant told him that Harrington gave him notes to purchase an interest in the business. On cross-examination he was asked for all this conversation, and testified that in the same conversation defendant also said that Harrington had not paid the notes and that he had given them back to Harrington and that Harrington did not have any interest in the business. It was insisted by plaintiff's counsel that these were self-serving statements and should not have been received. Obviously defendant was entitled to have the whole conversation in evidence. It was not substantive proof. The plaintiff called out on direct-examination an admission against interest, and then sought to close the mouth of the witness; but when the whole conversation was before the court it did not establish an admission against *111 interest and was not beneficial to plaintiff. Only a part of the conversation was proved by plaintiff. Defendant was entitled to have it all before the court. The trial judge entertained the view that plaintiff's counsel had opened the door, and permitted defendant to testify to facts equally within the knowledge of the deceased. A careful reading of this record does not convince us that plaintiff's counsel waived the statute, and we shall disregard such testimony as was given by defendant of facts which were equally within the knowledge of Mr. Harrington.
It appears from the oral testimony and from the books, that at times about the first of the year, Mr. Harrington was given varying sums in addition to his wages. On some of these occasions these sums were given Mrs. Harrington, but it also appears that about the same time sums were also given to Mr. Hess, who had no interest in the business, and was but a clerk in the store. They were given as a donation or bonus, Mr. Hess says, were in round figures, and the testimony does not indicate that they were the result of a checking over of accounts and a distribution of profits. The business, as is common, had its lean years and its prosperous years. So far as the record discloses, Mr. Harrington was never called upon to make up any deficiency in lean years, nor did he ever call on defendant for distribution of profits in prosperous years. Plaintiff's counsel stresses the presumptions which arise from filing the certificate of partnership and the possession of the notes by Mr. Harrington. With the elimination of defendant's testimony, the parol proof was very meagre. However, defendant called a disinterested witness, Captain Duncan, who was a good customer of the store, and who there purchased supplies for his boat. Shortly before Mr. Harrington's death he settled his bill for the two weeks previous, amounting to between $400 and $500, and, *112 supposing that Harrington was a partner, said to him: "You must be making lots of money," and that Mr. Harrington replied: "All I get is my weekly salary." This admission comports with the admission of the widow (plaintiff here) that her husband "never had any money to pay any notes," and sustains defendant's theory.
The plaintiff here seeks a decree for upwards of 7,000. To entitle her to such a decree the burden rests upon her to establish that a partnership existed between defendant and her husband at the time of his death. We are not satisfied she has discharged that burden, and must, therefore, affirm the decree dismissing the bill. Defendant will have costs of this court.
SHARPE, C.J., and BIRD, SNOW, STEERE, WIEST, CLARK, and McDONALD, JJ., concurred.
