1 Ariz. 340 | Ariz. | 1876
This was an action on a promissory note signed by Whit-low & Beatty. Whitlow was sued as surviving partner of the late firm of Whitlow & Beatty. The complaint alleges the partnership and other essentials in form not objected to by the defendant. The defendant answers, denying the partnership, execution of the note, and indebtedness. The case was heard with a jury. Plaintiff introduced evidence to show that the defendant and Beatty, whose name was signed to the note with that of defendant, had held themselves out to the public as partners; that Beatty had executed and delivered the note as a partnership note; that payment of the same was demanded of defendant; that he promised to pay, not denying the authority of Beatty to make the note. The note was put in evidence, with an indorsement of the payment of two hundred dollars thereon.
Defendant introduced evidence denying the partnership, alleging that when he promised to pay the note he was acting as administrator of the estate of Beatty, deceased, and that he promised as administrator, not as personally liable; alleging that he did tell one of the plaintiffs at the time of the demand or conversation about the debt, that Beatty had no authority to pledge defendant for payment. The foregoing evidence was the testimony of defendant himself.
Defendant introduced other evidence, viz., that of one Wilson, his book-keeper, to the effect that though the payment of two hundred dollars on the note had been made by his book-keeper, it was without authority, that the mules, alleged by plaintiff to have been given to defendant in consideration of the note by delivering them to Beatty, had been bought by Beatty with six hundred dollars, given him for that purpose by defendant’s book-keeper, as instructed by defendant; and that when Beatty brought them to defendant’s place of business, he claimed the mules as his own property, took them off on a journey for about a week, when he returned turned them into defendant’s corral, and in a
The jury having been charged, found for plaintiffs. Defendant moved for a new trial, assigning error of law in the charge of the judge. Motion denied. Appeal from the order refusing new trial.
The judge charged as follows, among other charges: “If the jury believe from the evidence that the defendant, with knowledge of the existence of the said note, made no objection to plaintiffs against the authority of Beatty to make it, when called upon to pay it, but promised plaintiffs to pay it, he thereby ratified the act of Beatty and became liable.” This is assigned as error. We see no error in this charge. It was not undertaking to answer for the default of another. The charge says, if the jury believe defendant had knowledge of the note, the note is the note of Whitlow & Beatty. To have knowledge of that note is to know that it is signed in that manner; that it is the signature of a partnership; it is a firm name; there was evidence before the jury that there was such a firm, and that defendant was a member of it. It was not error to say to the jury, with that evidence before them, that if they believed defendant had been notified that a note was out signed “Whitlow & Beatty,” had been called on to pay it, had not denied the authority of Beatty t'o make the note, but on the contrary, promised to pay it, he was then liable on the note.
The court further charged: “It is not my province to say what is proven,- or what is not proven; of that you are the sole judges. But I have the right to call the attention of the jury to important points in the testimony: The manner in which the defendant obtained the mules purchased by Beatty. According to the testimony of Wilson, it would seem that the mules were brought by Beatty to defendant’s
This the second assignment of error. It is urged that it was error to comment on this testimony, because it is claimed the testimony is not relevant to the issue in the case. But all this testimony was introduced by the defendant and admitted without objection. Defendant can not now object that the testimony was irrelevant. The testimony was in, it had gone to the jury, and if it were really irrelevant, all the more reason why the judge should comment upon it, so far as to prevent the jury from being misled by it. The purport of the evidence seemed to be, that because the defendant had the mules in his possession, they were his individual property. The judge explained to them that if the defendant was a partner of Beatty, then the mere fact of his having possession of the mules would prove nothing, because as surviving partner he would have been entitled to the possession; that if he was not a partner, then, according to the testimony of Wilson, the mules belonged to Beatty, and defendant, being administrator of Beatty’s estate, would have been entitled to the possession of the mules as such administrator.
Certainly, it is a correct proposition of law that a surviving partner is entitled to the possession of the personal estate of the partnership, pending administration, as also that as administrator in the case shown, if the property be
It is urged that he could not have been administrator and partner at the same time, but that is a collateral matter. His appointment as administrator might have been resisted •in the probate court, if it were shown that he was a partner, but such a question can not be considered here in this case on the present record.
It is further urged—and this seems to be relied upon as a serious ground of objection to this error that, as stated in the words of the transcript, “ this recapitulation by the court of Wilson’s testimony was made with a manner and emphasis indicative that the court regarded the testimony as extremely suspicious.” Whether the manner in which a judge delivers a charge, or the peculiar emphasis with which' he pronounces it, can be assigned as error, is not before us. It is sufficient to say that it is not properly assigned here. The appeal here is that it was error to deny a new trial. If it was claimed that a new trial ought to have been granted for that the defendant was unfairly prejudiced before the jury by the court, it should have been charged as irregularity in the proceedings of the court, coming under the first of the seven grounds for new trials, and the application should have been supported by affidavit. That is the mode prescribed by the statute, and it can not be properly presented or raised in any other way. A judge may have been entirely unconscious of the fact that his manner of addressing the jury was thought to unfairly prejudice them in any way in the case. If the charge is deliberately brought before him on motion for a new trial, and affidavits filed with it showing what persons consider that his manner was unfair, and to what extent they think it was calculated to prejudice either party, he, as also the appellate court, is in a position to judge whether a new trial ought to have been granted or not. But when parties have not thought the matter of sufficient importance to present it properly, or for any cause have not in fact done so, the question can not of course be considered on appeal.
The order denying a new trial, and the final judgment are hereby affirmed.