John Field & Co. v. Tenney

47 N.H. 513 | N.H. | 1867

Bellows, J.

The evidence of partnership was competent, even if there were written articles. It is so laid down in the elementary books, 4 Starkie’s Ev. 1067, where it is said that the usual evidence is the oral testimony of clerks or other agents or persons who know that the alleged partners have actually carried on business in partnership ,• and it is unnecessary, even in criminal cases, to produce any deed or other agreement by which the co-partnership has been constituted. Such is the doctrine laid down in 2 Greenl. Ev. sec. 479, and cases cited; and also in Collyer on Part. 3d Am. Ed. sec. 686, and sec. 769.

It is also held to be the law in Alderson v. Clay, 1 Stark. 405 ; and in Bryer v. Weston, 4 Shepley 261, where it is said that such proof is sufficient when the partners are plaintiffs as well as when defendants.

If the contents of the articles of co-partnership are to be proved, the articles must be produced or accounted for, if the proof be by the firm; and if by the other party, the notice must be given before parol evidence of their contents can be received. But it is otherwise as to the fact of partnership in suits between the partners and third persons. Indeed a contract to enter into partnership at a future time does not necessarily prove that such partnerships actually exist, for the parties, or some of them, may afterwards decline to carry their agreement into effect, leaving the persons aggrieved to their remedy upon 'the contract.

The fact, then, of their having actually become parties, and commenced business as such, is properly proved by oral evidence, but when the terms upon which the partnership is formed become material, the articles themselves, if any exist, should be produced.

If it were necessary to prove the mere fact of the existence of the partnership by the articles themselves, it would be because it is the regular and primary evidence of that fact, and therefore oral evidence would be secondary; and if so it would apply to the case where the plaintiff seeks to prove the defendants to be partners, as well as where the plaiiitiffs undertake to prove themselves to be partners.

In the former case, however, of a plaintiff seeking to recover of partners, it is too clear to admit of doubt that oral proof of the fact of partnership has never been understood to be secondary evidence; and so we think it must be where the plaintiffs are seeking to prove themselves to be partners.

In Widdifield v. Widdifield, 2 Burney 245, this doctrine was recognized, and the court held that oral proof that defendants were partners, was not to be regarded as proof of the contents of the articles.

This conclusion renders it unnecessary to consider the effect of the circumstance that one of the members of the firm had retired from it. It is clear, however, that the death of a member is ordinarily a dissolution of the partnership, and the retiring of a member stands probably upon the same ground. If so, and the partnership is dissolved, the articles are no longer in force, and in case a new partnership is formed by verbal agreement, they need not be produced.

The inquiry of Slade as to the price of cotton, at the place of purchase and at the places of sale, was made apparently to show that large profits might be expected from the purchase of the cotton in question, to render it probable that plaintiffs did engage in it; but there does not appear to be any evidence tending to show that plaintiffs did agree to take any interest in that purchase. On the contrary, it appears that they agreed to become interested in the purchase of certain lots named in the written agreement, and afterwards in a lot known as the Grand Gulf cotton, and it is expressly stated in the case that there was no evidence that the cotton in question was any part of either of the lots mentioned.

It is urged for the defendant that the contract of May, 1864, was not given up, and that this was in issue at the trial, and that therefore the prospect of great profits afforded by the enterprise might properly be considered ,• but the difficulty is that the contract was limited to the purchase of certain specified lots of cotton, and the case finds that the lot in question was not one of these, and there is no evidence which legally tends to prove an extension of the contract to this lot.

If the defendant had assumed in his letter of advice that he had purchased this cotton on joint account, and the plaintiffs without objection had proceeded to honor the draft, a different case would have been presented. But he makes no such assumption. On the contrary, he says he will be personally responsible to the plaintiffs for the amount, saying he may get it soon, and there may be some delay, but he has it so there is no chance to lose.

The payment, then, of the draft by plaintiffs, in the manner stated by the witness, Slade, does not legally tend to prove that plaintiffs were interested in that purchase, and the inquiry respecting the profits likely to be realized was not relevant.

It is objected that the letter of the defendant of November 4, 1865, was an offer of compromise, and ought not to have been admitted; and also that the question whether it was or was not an offer of compromise, should have been determined by the court, and not by the jury.

In Bartlett v. Hoyt, 33 N. H. 165, it was decided that it was within the discretion of the court to submit to the jury the question whether a statement of a party was a mere offer of compromise, or an admission of a fact. In that case it was so submitted with proper instructions, and held well, and with that decision we are satisfied. In many cases it certainly would be convenient to submit the question to the jury, inasmuch as the construction to be put upon the language used would often be materially modified by the nature of the case and the surrounding circumstances; and with proper instructions, which can always be secured, we think no serious mischief would be likely to arise from the exercise of this discretion. Of course, the discretion would be cautiously exercised, as it appears to have been in this case. To the instructions no specific exceptions were made, the objection appearing to be to the submission of the evidence to the jury, at all; and it is therefore to be assumed that the instructions were right.

This makes it unnecessary to consider whether the letter was in fact admissible. If it is to be understood as an admission that the defendant owed the money, and was proposing how to secure and pay it, it would come directly within the decision of Snow v. Batchelder, 8 Cush. 516, which held such a statement not to be an offer of compromise, an offer to buy peace, but an admission of the debt, and a proposal for terms of settlement, and therefore competent.

In Hartford Bridge v. Granger, 4 Conn. 148, the distinction is held to be between admissions of a fact because it is a fact, and mere offers to buy peace. In Thompson v. Austin, 2 D. & R. 358, Bailey, J., says that the essence of an offer to compromise is, that the party making that offer is willing to submit to a sacrifice and to make a concession. See, also, 1 Greenl. Ev. sec. 192, and notes. Of the same character is the doctrine of Sanborn v. Nelson, 4 N. H. 505.

In the case at bar, the defendant’s letter is clearly capable of a construction that would make it an admission that he owed the debt as a fact, and not as a mere offer or concession to buy peace, and so construed it would be competent. It may be suggested, also, that the jury has found, as the court also would have found, as matter of law.

The direction of the deposition of Benjamin E. Smith must be regarded as sufficiently certain, notwithstanding the mistake in the initial letter of the defendant’s middle name. It is obvious that there could be no uncertainty in respect to the cause intended to be described, and to reject the deposition for this error would be a refinement in technicality that is not countenanced by the course of the court. The notice of the caption was properly annexed, and was referred to in the certificate, although it is not required by the statute that it should be.

The certificate of the oath of the deponent is sufficient. It states that they made oath that the depositions by them subscribed, contained the truth, &c., and also that they were severally sworn to testify the truth, &c., which would seem to imply that they were sworn at the commencement, as the other part does that they were sworn at the close, a practice which exists in many of the States.

The statements of the witness, Smith, in reply to interrogatories five and eight, are made as of positive knowledge, and he might have possessed that knowledge in a sense which would authorize him to testify as he has done. He may have been present at the erasure of part of the endorsement on the bill, and knew that plaintiffs were not, and could not have been consulted. So he may have known from defendant’s own statements that he had no funds in the hands of the plaintiffs, or Bartlett & Smith. It is true that the information of the witness may have been derived from hearsay, but the court cannot say that it is so, when the statements are positive and might be true. This was, therefore, properly left to the jury. Dickinson v. Lovell, 35 N. H. 17. .Had the defendant cross-examined the witness, as he might have done, and shown clearly that his statements were merely hearsay, they should have been rejected, but, as it stands, we think there is no error.

The remaining question respects the form of the tenth interrogatory in the same deposition. The witness was asked to state whether the money was paid in consequence of the request in defendant’s letter, or because of any interest of the plaintiffs, or any member of their firm, in the transaction, and it is urged that this is leading. The precise ground of objection is not stated, but we think it cannot be said that the question calls for a simple affirmative or negative answer, as yes or no ; or that it suggests the answer which is desired; neither is it open to the objection that it is a fact m controversy. If it be objectionable at all, it must be that it suggests the language that might be used, and was in fact used, substantially, in the answer.

It is quite obvious that a better form might, and ought to have been, adopted; and the question, Why was the money paid by the plaintiffs ? would have been free from any controversy. As the question is framed it is not free from doubt and perplexity, which, with a little care, might have been avoided. We are inclined, however, to think that there is no such defect as ought to disturb the verdict, for notwithstanding the answer to both branches of the inquiry is substantially in the words of the question, there was nothing to indicate what answer was desired, and the attention of the witness was called to the precise points about which his testimony was wanted, in a form as little open to objection as any that occurs to us, and the only question is, whether his attention could properly be so directed to the matters specified.

In Webster v. Clark, 10 N. H. 245, it was held that the inquiry, "Did you, or did you not, see put into the box four blue, pilot overcoats?” was not of such character as to justify disturbing the verdict. In Willis v. Quimby, 31 N. H., it was held that a question in respect to a certain-conversation, whether it was in earnest or in joke, was not leading, and a verdict was set aside for rejecting such a question.

The question before us does not come within any of the objections stated in Steer v. Little, 44 N. H. 613, and upon the whole we are of the opinion that the verdict should not be disturbed on account of the admission of this interrogatory.

Upon these views there must be

Judgment on the verdict.