5 Wyo. 1 | Wyo. | 1894
Lead Opinion
This is an action to recover a sum due on á certain promissory note executed and delivered by Adams, Choate & Co., “per Geo. D. Rainsford.” Thomas B. Adams, Edward C. Choate, Minerva M. Peters and George D. Rainsford were sued as copartners 'doing business together under the firm name and style of Adams, Choate & Company. George D. Rainsford alone of the defendants answered, although it appears all were served with the process of the court. The other defendants were in default. Rainsford in his separate answer denies his liability and alleges that he was never a member of said co-partnership. To this answer the plaintiffs in the original action, defendants in error here, replied alleging that Rainsford executed and delivered the note as a member of the co-partnership of Adams, Choate & Company, and at the time of the execution and delivery represented that he was a member of said firm, and that he had full power to execute said note on
- The grounds of error will be treated of separately.
1. It is 'claimed as error that there is a fatal variance between’ the allegations of the petition and reply of plaintiffs and the proofs and testimony adduced on the trial of the ease in behalf of the plaintiffs which amounted to a total failure of proof. We do not see that there is any inconsistency or variance between the petition and the'reply'of the plaintiffs. They assumed iff their petition'that Rainsford was a member of the co-partnership and charged therein that he was. He denies'this • allegation in his separate'answer, and in reply thereto, the plaintiffs allege that he represented himself to be a member of the co-partnership of Adams, Choate & Có., that they relied upon such representations, believed them to be true, and accepted the note .as-that of all of the defendants, ■including Rainsford, who-executed-and delivered the note personally as a member of said firm.' The plaintiffs, in their Teply specially plead an estoppel on the part of Rainsford, that-he ought not'to'be heard to deny that he was a member df said firm. So far as the'pleadings go, the allegation in the petition' and reply of the plaintiffs -do not seem inconsistent. The plaintiffs may not have known the fact that Rainsford was" not' a' member of 'the GO-partnership, and therefore
'. This testimony was-corroborated by'other-witnesses for the •plaintiffs. The note accepted by the plaintiffs was drawn and signed by Bainsford; the' signature being “Adams, Choate & Co., pr. Geo- D. Bainsford;”' •' Massengale testifies that he was not a well educated toan, and being-called away when the note was being executed, requested one Beed, wIio was present, and who testified in the case, “to notice the-note.”
. ■' The variance - and the failure.of proof .claimed -by plaintiff in-error are based upon these' statements. ■ -Adams, Choate &
It hardly seems as if there was a variance between the pleadings and the proof. If immaterial, it may be disregarded here, and if material, the adverse party should have shown that he was misled by it to his prejudice, by evidence aliunde in the court below.
2. Error is also predicated on the ground that the findings of the court were not sustained by sufficient evidence in this, that the plaintiffs failed to make out their ease by a preponderance of evidence.
There was sufficient evidence on behalf of the plaintiffs below to sustain the findings of the court for them. The evidence taken as a whole was conflicting, but the trial court sitting as a jury balanced the testimony and found for the plaintiffs. We cannot set aside the verdict of a jury nor the finding of a court on a question of fact, unless the verdict or finding be not sustained by sufficient evidence or is clearly against the weight of evidence. The trial court or the jury has peculiar advantages not possessed by a reviewing court for determining the truth of the testimony of a witness, from his demeanor, and manner of testifying. These important factors in testing the truthfulness of the narrative of a witness are missing in the cold words of the record in. the appelate court. No court with the record alone, and unable to travel these avenues of sight and sound, which can only be traversed in a trial court where the witnesses are present, would attempt to decide a nicely balanced case, which has been once determined with the aid of these means for testing the credibility of each witness. The matter is settled beyond cavil by
3. The third ground of error' is that the court - erred in excluding the proffered testimony of Rainsford and Hay which would have shown that-defendant Rainsford was reimbursed for the $400.00 which he advanced by his personal cheque at the time of the execution of the note sued on. This evidence would have been immaterial. That Rainsford was never a . member of the partnership is conceded. ' The rejected-'evidence would have'been-merely upon this -point, 'as showing that he was reimbursed for his advances. His liability does, not ¿rise "from the fact-of making-the cash' payment advanced by his personal cheque on account of the purchase of the-horses, and the subsequent repayment to him by-Adams, Choate & Company of that amount was not material to the issues.
■-The judgment • of - the''district court for Laramie County must be'affirmed. • -
Rehearing
ON'REHEARING.
The petition' for rehearing .accompanied by the brief of counsel--for-plaintiff in error was submitted without argument..
- We see no reasons for'-changing-the-views expressed in the opinion i-n;the case," and the motion for--a rehearing-is there? fore denied.