17 Vt. 449 | Vt. | 1845
The opinion of the court was delivered by
The only point in dispute in this case, before the jury, seems to have been, whether the firm of Cram & Hutchinson consisted of Cram and Nathaniel Hutchinson, or of Cram and John Hutchinson. The suit being brought against Cram and Nathaniel Hutchinson, the effort of the plaintiffs was, to make proof of his liability, both on account of the costs, which would be lost in bringing a new suit, and also from the fact that Nathaniel Plutchinson was responsible, — Cram and John Hutchinson being understood to be insolvent.
The evidence of this witness, so far as it affects the main point in the case, seems to have been altogether hearsay, or common -reputation in the neighorhood, — neither of which is competent to prove the fact of a copartnership. 1. The witness states, minutely his intimacy with the business of the firm for many months, without saying that he knew which of the Hutchinsons was the partner,- — which he could easily have done, if such had been the fact. 3. That, being inquired of by the plaintiffs, he told them Tie considered the defendants perfectly responsible, — which is, doubtless, understood by all as equivalent to an assertion that he considered Nathaniel Hutchinson the partner ; — but why so 1 That is left to conjecture. 3. That he never heard a suggestion that John Hutchinson was the partner, — which is equivalent to saying that every body considered that Nathaniel Hutchinson was the partner, — until the witness left for Corinth. 4. He was never told by either of the Hutchinsons, or Cram, or Howe, who constituted the firm, but he founded bis opinion upon “ the remarles of townsmen and his Tmowledge of the circumstances of the Hutchinsons. This testimony was clearly incompetent, and very well calculated to mislead the jury.
Judgment reversed, and new trial.