Lawrence v. Thompson

49 N.Y.S. 839 | N.Y. App. Div. | 1898

PER CURIAM.

The action was brought to recover a balance due for goods sold and delivered to the firm of E. Thompson & Co., which firm, the complaint charged, was composed of the defendants. Mary H. Thompson alone answered and defended, denying the partnership and her liability. Assuming that there was enough shown on the trial to justify the submission to the jury of the question of the defendant Mary H. Thompson’s interest in the firm, it is clear that a mass of incompetent evidence was admitted, only a single instance of which it is necessary to recite. A witness for the plaintiffs was permitted to give the following testimony as to declarations of that defendant’s husband, made in her absence:

•‘Q. And in speaking of that unfinished work, do you know whether or not he used the language, T or ‘We have that work’ ? A. I think he always used 'We.’ Q. From all the questions of Mr. Thompson and his wife, and your dealings and conversations with them, who did you understand ‘we’ meant? A. Well, I understood and always believed that it was his wife. I didn’t know of anybody else at that time.”

The declarations of the husband were not competent as against his wife, and even had they been made in the presence of the wife, so as to bind her, the witness should not have been permitted to testify to his understanding of their effect. The declarations themselves should have been proved; and, if there was any doubt as to their meaning or as to what persons or what matters they referred, the question of the meaning or reference was for the jury, not for the witness. Both questions were objected to, and the testimony admitted over the defendant’s objection and exception. This was plainly error.

The judgment and order should be reversed, and a new trial granted, costs to abide the event.