47 Ga. 253 | Ga. | 1872
It was not necessary, then, under section 1888 of the Code to prove the existence of such a firm as M. Fleshman & Company — that is conceded by the form of the plea — but only that Rich was a member of it. The judgment binds only the individual property of Rich, and the property of a firm doing business at the date of the contract sued on,’ under the name of M. Fleshman & Company, of which Rich was a member. If property be levied on, under the judgment and claimed by a firm bearing that name, proof that Rich was no member of it at the date of the contract would discharge the levy. Again, by what right does Rich object to this evidence? All that the authorities relied on show, is that the evidence is not admissible as against other members of the alleged partnership. They are not here objecting. Suppose A is sued and permits judgment to go by default, and the plaintiff proves his claim by evidence that might have been excluded had the case been contested, it will not be denied that the evidence was properly admitted, the defendant not choosing to appear and object. Now, suppose A and B sued as partners, and both served, A pleads no partnership, and B permits judgment to go by
In McPherson vs. Rathbone, 7 Wendell, 220, it is said, “the declarations of one of several partners cannot be given in evidence to prove a partnership, only as against the person making them.” In Whitney vs. E. Ferris, impleaded with others, 10 Johns., 66, the plaintiff sued three defendants, as partners. E. Ferris was served, and a return of non est as to the others. The plaintiff offered to give in evidence the declarations and acts of Jonathan Ferris, (one of the two not served,) to show that Bostwick, (the other of the unserved partners,) was in partnership with Jonathan and Elijah Ferris. Defendant’s counsel objected io any evidence of the declarations or acts of J. Ferris, implicating E. Ferris, until the plaintiff had first proved the fact of a partnership between the three persons charged. The Chief Justice overruled the objection, and admitted the evidence. The jury found for the plaintiff, and defendant moved to set aside the verdict. The Court say, “the declarations and acts of Jonathan Ferris are evidence to show that he considered himself a partner with Bostwick “and Elijah Ferris, but they are not evidence directly to implicate or charge Elijah with being a partner. They were, therefore, admitted in this case in too broad a .latitude, and we cannot say what influence they might have had with the jury in.charging Elijah directly as a partner. We cannot certainly determine but that if those declarations had been understood and declared to operate only as an admission of Jonathan Ferris against himself, the jury might have found a different verdict” — and, therefore, a new trial was granted.
That case and the one at bar run very nearly parallel — the difference being that the party served in the present case is the one whose declarations are offered in evidence to prove him a
We, therefore, affirm the judgment.