M. Fleshman & Co. v. Collier, 47 Ga. 253

M. Fleshman & Co. v. Collier

47 Ga. 253

Ga.

1872

Check Treatment

Montgomery, Judge.

1. The first exception considered by the Court in this ease was the overruling of the objection made by defendant to proof of the existence оf the partnership of M. Fleshman & Company, and that he was a member of it some three months after the date of the contract sued on. The strongest case relied on by the plaintiff in error, (and defendant below,) is Collier et al. vs. Cross et al., 20 Georgia, 1. In that case, it was decided that evidence of a partnership, existing prior to the date of the contract sued on, was inadmissible to show its existence at that date. Then, only two Judges presided, and one of them, (Judge Benning,) himself, overrules the first point decided in 25 Georgia, 608. The second point decided in Collier vs. Cross, and the one here relied on, is overruled in Pursley vs. Ramsey, 31 Georgia, 403. The authority, then, fails the plaintiff in error. Is not the reason of the thing against him ? How impossible would it often be to prove the existence of a partnership at any exact date. Proof that the persons alleged to be partners so acted before or after, or before and after the time at which it becomes material to charge them as such, is all that can be reasonably expeсted in many cases. The evidence will go to the jury for what it is worth, having more or less weight, accordingly, as the time when they are proved to have been partners, is more or less remote from the time at which it is sought to charge them as such, *257and to be considered by the jury with the other evidence in the case; as for instance, in this case, the introduction ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of Rich to Ezzard, the agent of the plaintiff below, by Cohen, (who made the contract as аgent for M. Eleshman & Company with Ezzard as plaintiff’s agent,) as a member of the firm, and the failure of Rich to deny it; and again, the offer of the plaintiff to Rich tо cancel the agreement or to submit their difference growing out of it to arbitration, and Rich’s refusal to do either, still not denying that he was a member оf the firm. We are satisfied there was no error in the admission of this evidence.

2. The next ruling of the Court below insisted on as error, was the admissions of Rich in evidеnce to show himself a member of the firm, it being urged'that such admissions were not competent until proof of the partnership aliunde, because it аffected the interests of the other alleged members, and bound their property by the judgment. To support this objection many authorities are relied on, which I will briefly review: McCutchen vs. Bankston, 2 Georgia, 244, relied on by plaintiff in error to support this point, was an attempt to prove admissions of an alleged partner, not а party to the suit, against his alleged copartner, the defendant. The Court held the partnership must first be proved to the satisfaction of the Court. The existence of the partnership must necessarily be shown to make the admission of one not a party competent against the defendant. The Court rejected the testimony because not satisfied of the existence of the partnership, as he •well might not be — the proof showing a partnership formed by the defendant sometime in 1856 or 1857 with William Thomson and Z. Holloway. The note sued on was dated May 12th, 1837, and signed Samuel Thomson & Company. The attempt was to prove the admissions, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of Samuel Thomson against the defendant. In 12 Georgia, 591, two were sued, and the admissions of one held inadmissible against the other, until the joint interest was otherwise proved. In Strauss vs. Waldo, Berry & Company, 25 Georgia, 641, A and C were sued as partners on a note signed “A.” C plead*258ed no partnership. No proof was offered that he was a partner: Held, that such proof should have been made; the plea cast the onus on the plaintiff. It will be recollected that in the case at bar only the defendant, Rich, was sued, and a return of non est as to thе others. Of course, under the Code, only the individual property of Rich, and the. property of the firm of which he was a member, are bound by the judgment. It will be perceived from the short synopsis I have given of the chief cases relied on by plaintiff in error, that the evidence of the admissions of one alleged partner are inadmissible until proof of partnership by other means, against his alleged partner, but surely they are admissible against himself, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are a sufficient foundation fоr a judgment against him as a member of the firm, which will bind his individual property. It will be borne in mind that Rich no where denies the existence of the firm at the date of the сontract. His plea goes • only to the extent that he was not then a -member of it.

It was not necessary, then, under section 1888 of the Code to prоve 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 thе 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, оf 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 evidenсe 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 evidеnce that might have been excluded had the case been contested, it will not be denied ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that the evidence was properly admitted, the dеfendant 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 *259default. On the trial it is proposed to prove the partnership by A’s admissions. Can he object in behalf of B? As against him, the evidencе is good: 2 Greenleaf’s Evidence, section 484. As against B it is incompetent, but B does not choose to object: Greenleaf’s Evidence, 177. The cаse at bar is not so strong. The judgment will not even bind the other alleged members to the existence of the partnership.

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 Jonathаn 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 аre 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 havе 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 grantеd.

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 *260partner. If the case just referred to be law, as we think it is, they are clearly admissible.

We, therefore, affirm the judgment.