Hersom v. Henderson, 23 N.H. 498

23 N.H. 498 | Superior Court of New Hampshire | 1851

Eastman, J.

Several questions are raised in this case, and some of them are not without difficulty. But after considerable consultation among ourselves in regard to them, we have arrived at the conclusion that the exceptions must all be overruled.

The first question presented, as we understands, is, that there was a variance between the proof and the declaration. This is not so clearly stated in the case as perhaps it might have been, but the counsel upon both sides have treated it in that light, and so we presume it was understood at- the trial. The plaintiffs, in the first instance introduced evidence tending to sustain their action in the name of the firm, and to show that the defendant knew he was contracting with the firm. This particularly appears by the testimony of Hall. But on notice from the defendant a bill of the horses is produced, made out to Hersom alone, and receipted by Henderson. This, it is contended, shows that the contract was made with Hersom, and that the action cannot be maintained in the name of the partnership.'

It is a well settled principle, that the substance of the issue alone need be proved; but where the allegations are matter of essential description they must be literally proved, as laid. Thus in a declaration upon a promissory note, every allegation is descriptive of' the note and essential to its identity and must therefore be strictly proved. Keyes v. Dearborn, 12 N. H. Rep., 52; 1 Greenl. Ev., §56. But this is not a declaration containing matter of essential description, and if the substance of the issue be proved, it is sufficient. The question here is, whether the plaintiffs are the real and proper parties to the suit, or whether Hersom alone should haue brought it; and the jury must judge from the ithole evidence bearing upon the point. The evidence tends to show that Hersom was the active partner, and frequently acted as the agent of the firm, transacting the business in his own name. The argument of the defendant proceeds upon the ground that the receipt controls the whole matter. But we do not so regard it. It was a mere receipt for money upon the delivery of the horses, which might well enough have been taken in the name of the firm, or in the name of either member of it. We think the counsel for the defendant errs, when he contends that the evidence in this case would not have entitled the defendant to maintain an action against both the plaintiffs, in their partnership name, for the purchase money of the sale. An examination of the evidence satisfies us, that it would be entirely competent and sufficient, and that the receipt could not control it. Besides, a judgment in favor of these plaintiffs would be a good bar -to an action brought by Hersom, and the rights of the parties may, for aught we see, be as well tried in this action as in one in favor of Hersom alone.

Among the evidence tending to show the partnership, a witness testified that he had known Hersom to transact the business in his own name. To this evidence, the objection was taken that it was a general statement — a matter of general reputation, as stated in the argument. But the court do not so understand it. It was the testimony of a witness to a fact within his own knowledge, which might have been further enquired into, if desired; and although general reputation is not competent evidence to prove a partnership, (Grafton Bank v. Moore, 13 N. H. Rep., 99,) yet the transactions of parties bearing upon the point may be received, if not objectionable upon general principles. Grafton Bank v. Moore, 14 N. H. Rep., 142.

The ground taken that, as against the receipt, the plaintiffs could not show that the purchase was made for Hersom & Co., was.in effect stated to be untenable, in considering the first exception. A receipt, which purports to be only the acknowledgement of payment or delivery, is merely prima fadé evidence of the fact and is open to explanation or contradiction. Unless it contain some contract, or some obligation by which something is to be done, its recitals can always be explained. 1 Greenl. on Ev., § 305. This bill contains only evidence of the sale — the delivery of the horses and the receipt of the money. It is not a paper of that conclusive character contended for by the defendant.

The statement in the agrument, that there was nothing from which Henderson could know or infer that Nason was a party to ? or interested in the sale is not sustained by the facts reported. Hall says, that he told Henderson if he would warrant the horses sound, he had some friends who wished to purchase, and named Hersom and Nason ; and upon Henderson’s answering that he would warrant them, he sent word to the plaintiffs, by Henderson, to come up and see them, and on the next day Nason came up and looked at the horses. And although it is further said that Henderson was absent when Nason came up, yet it can hardly be presumed that Henderson did not know or infer that Nason was a party to, or interested in the sale.

The next point, the question as to the admissibility of the testimony of the employee in the stable, is one of more doubt. There is nothing in the case indicating that the facts testified to by him, took place after the controversy arose, as is intimated in the argument, and therefore we shall not so consider it. If such had been the fact, it would probably have been drawn out on cross-examination and would have appeared in the case.

It is extremely difficult, if not impossible, to lay down any exact rule that shall govern this class of questions. It was said in Sessions v. Little, 9 N. H. Rep., 271, that if evidence of air act done by a party be admissible, his declaration, made at the time, and tending to elucidate or give a character to the act, and which may derive credit from the act itself, will be also admissible, as part of the res gestee. We are not disposed to extend the rule there laid down, but after some hesitancy we have thought that this evidence might come within the principle there explained. The plaintiffs kept the animal íd the stable, although wanted for use. This was an act negative in its character, but within the meaning of the term, as used in this connection; and it was competent for the plaintiffs to show that such was the fact. The declaration, made at the time, tended to elucidate and give character to the act, and derived credit from it. The act then being admissible, the declaration was also, as part of the res gestee.

The question to Rollins, was, according to the argument of the defendant’s counsel, put with a view to show that his character for truth was bad. Assuming this to be the case, it was not admissible. A witness may be impeached by disproving the facts testified to by him, by general evidence affecting his credit for veracity, and by showing that he has made statements put of court, contrary to those he has testified to at the trial. 1 Greenl. Ev,, § § 461, 462. The course undertaken to be pursued in this instance was not in accordance with any of these rules. The question could not have been asked of any other witness with the view of impcaching Rollins, and if it was not competent to be put to others with that intent, then it could not be asked of Rollins himself, for that purpose.

This question would also seem to have been properly excluded, in the discretion of the court, as degrading to the witness. It is the duty of the court to see that witnesses are rightly protected from disgrace, especially where the questions put do not bear directly upon the issue on trial. 1 Greenl. Ev., § 460.

The testimony offered in connection with what appeared in the cross-examination of Rollins, was' upon a collateral matter and properly excluded. If admitted, it would at once have transferred the enquiry from the sale between the plaintiffs and defendant, to the one between Rollins and Rowell. Rollins’ testimony on the direct examination went chiefly to the fact that the mare had fits. The purchase by him appears as a merely incidental matter. Had the sale by the plaintiffs to Rollins or from Rollins to Rowell been in any way relied upon by the plaintiffs, as tending to establish any fact pertinent to the issue, the enquiries might have been proper. But the evidence offered by the defendant would not have been admissible, as independent testimony, to establish the matters contended for in the argument. It could not be received unless -to contradict Rollins, and being upon a collateral matter it was not competent for that purpose. This disposes of all the exceptions, and there must be

Judgment on the Verdict.