Robinson v. Parker
11 App. D.C. 132
D.C. Cir.
1897
Check Treatment
Mr. Justice Shepard

delivered the opinion of the Court:

1. In order to prevent injurious surprises and annoying delays in the administration of justice, rules of practice, looking to the orderly introduction of evidence by the respective parties, are essential. The trial has its regular stages of process, and the evidence should be introduced with direct reference thereto. In many, if not a majority, of the States of the Union, the strictness of the common law practice in respect of the introduction of evidence in chief and in rebuttal has been much relaxed; and the plaintiff is only required to open his case fairly upon all his points with a reasonable number of witnesses. Having thereby made a prima facie case, he may reserve additional testimony to strengthen his case upon such points as may be seriously attacked by his adversary. On the other hand, the established practice of the common law that has prevailed in this District requires that the plaintiff shall offer the whole of his evidence in support of the issues which he maintains; the defendant shall then offer evidence in maintenance of his entire case; and the plaintiff is limited in reply to such new questions as shall have been first opened by the defendant. Bannon v. Warfield, 42 Md. 22, 39.

The purpose of all rules of practice is the facilitation of the enforcement of justice; and hence, when their strict application would tend to its obstruction, the trial courts, under the wide discretion entrusted to them in such matters, may and should make departures to meet the exigencies of particular cases. This discretion is so large and its exercise is so dependent upon circumstances and conditions that can rarely be fully appreciated outside of the trial court itself, that as a general, if not universal, rule it will be re*139garded as not subject to review in an appellate tribunal. P. & T. R. Co. v. Stimpson, 14 Pet. 448, 463; Langdon v. Evans, 3 Mackey, 6, 7. Therefore, if the foregoing rule applies with proper farce to the facts presented on the bill of exceptions, there would be an end of the question. We are of the opinion, however, that it does not. Those facts come nearer falling within the rule of a class of cases where, as stated by Chief Justice Shaw: “It sometimes occurs that the evidence on re-examination would have been pertinent as original evidence in part, and in part is strictly rebutting.” Chadbourne v. Franklin, 5 Gray, 312, 314. They make a case, indeed, much stronger than that stated.

The witnesses could have been called in the opening to testify to the existence of the denied partnership, in corroboration of their co-plaintiff, Eugene F. Eobinson, and had that been the purpose of their call, after defendant had closed, their exclusion would not be error. So, likewise, had they been called merely to corroborate Eugene P. Eobinson in the matter of his explanation of his own previous statements under oath, although his evidence was called out by the new matter offered in connection with his cross-examination by the defendant. Had the defendant contented himself with identifying the affidavit of Eugene P. Eobinson, and then had introduced it in the course of his own case, that witness could properly have been introduced in rebuttal for the purpose of explaining the circumstances under which that admission or declaration had been made. But as it was called to his attention and read in the hearing of the jury on his cross-examination, he was called upon to explain it to them or lose his right to do so, by way of subsequent rebuttal. P. & T. R Co. v. Stimpson, 14 Pet. 448, 461. Having elicited his explanation, plaintiffs closed their case. They were not compelled to anticipate the introduction of the sworn statement of the other plaintiffs. In support of his case the defendant read these sworn statements of Bushrod Eobinson and William L. Chery from the *140bill and answer in the former suits in equity. Having been read to the jury by the defendant in the maintenance of his case as solemn admissions of the two parties, we think they constituted new matter which the plaintiffs had the fight to call upon the proper witnesses to explain, if possible; and their exclusion was erroneous.

2. What may constitute the legal relation of partnership between two or more persons in a given matter is a question of both fact and law. Persons may become copartners without a special agreement for the purpose, by virtue of the effect which the law gives to an undertaking for the use of a common capital with division of profits and losses, in continuous transactions, though carried on in an incidental manner. Therefore, if the plaintiffs, without a special or express agreement to form a partnership, contributed a fund to be invested as occasion offered in notes, stocks and the like, and agreed to share the gains and losses thereof between them, they thereby become partners in the view of the law, and the court properly instructed the jury to that effect as requested by the plaintiffs. Ward v. Thompson, 22 How. 330, 333; 17 Am. & Eng. Encyc. Law, 830 et seq.; 1 Lindley, Part., 16 and 19; 1 Bates, Part., Secs. 17 and 26.

To enable the jury to give proper weight to the sworn statements that the several plaintiffs had formerly made, averring joint interest in the fund deposited to the credit of “Robinson, Chery and Robinson,” but denying that they were copartners, it would have been proper, at the request of the plaintiffs, to explain to them that if they believed the plaintiffs had, in the beginning, agreed to operate with the joint fund and share the profits and losses, they would be partners in contemplation of law, whether or not they so understood the effect of the agreement at the time; and, in that event, the subsequent declarations of one or all that they were not partners could not have operation to alter or destroy that relation. The legal effect of the agreement under which the three parties operated did not rest on their *141opinions in respect of it. Lintner v. Milliken, 47 Ill. 178, 181. This was, no doubt, the purpose sought to be subserved by the special instruction asked by the plaintiffs, the refusal of which is the foundation of the second assignment of error; but it was not expressed with sufficient clearness therein to require its submission to the jury. It informed the jury that if the partnership relation existed as defined in the first special instruction given, it “could not be affected by subsequent declarations by any one or all of the parties concerned.” This was true, but not to the full extent that the jury might have inferred from the unqualified terms of the instruction. Those declarations, as we have seen, could not affect the relations of tiie parties, if the facts averred of the original agreement were found to be true. But there was another object in their introduction as evidence, and that was to impeach the credibility of the witnesses in respect of the facts testified to by them as constituting the said agreement, and the jury should have had their attention called to the distinction. Considered in this second point of vievq they might possibly have affected the relations of the parties in the opinion of the jury; and the defendant was entitled to the benefit of whatever weight they might have given them. As the instruction was not presented in an unobjectionable form, the court was not required to amend it, and its refusal therefore does not constitute reversible error.

3. As this case must be remanded for a new trial, a question of practice appears in the record that deserves consideration, for it may be made the subject of exception, although not now formally raised. It wras assumed on the trial, and not controverted, that the denial of the partnership of the plaintiffs, filed by the defendant in the form of a special plea, wras a plea in abatement strictly, and in consequence could not be accompanied by an ordinary plea in bar. Is this a correct view of the nature and function of this special plea denying partnership as alleged? According to the immemorial rule of the common law practice, the plain*142tiffs, alleging a partnership, were compelled to prove it in order to maintain their case. To prevent useless consumption of time in making formal proof of facts about which there was no real controversy, the Supreme Court of the District of Columbia, under the power vested in it by Congress, adopted a rule for the purpose. That rule reads: “The special character in which the plaintiff sues shall not be considered to be in issue or necessary to be proved, unless, by special plea under oath as to the truth thereof, the same be denied.” Com. Law Rule, 112. A plea in abatement, properly so called, sets up an independent fact that, if true, puts an end to the action without regard to the merits. Having pleaded the fact in abatement, the defendant is required to prove it. It does not put the plaintiff upon proof of anything that he was not required to prove without it. The special plea denying partnership as alleged requires no proof in its support. Its sole purpose and effect is to put the plaintiff upon proof of that which, before the adoption of the rule, he was compelled to prove without a special denial. We do not think this rule should be regarded as changing or affecting the manner and order of pleading, but rather as a rule of evidence governing in the trial. The rule aforesaid was no doubt suggested by the statutes prevailing in many of the States at the time of its adoption, whereby, in order to prevent unnecessary costs and consumption of time, presumptions were raised of the truth of certain formal allegations, unless they should be specially denied under oath. A statute of that purport, enacted in Illinois, and which is set out in part in Cooper v. Coates, 21 Wall. 105 —a case cited by the appellee—was construed by the Supreme Court of that State, at a very early day, to make no change in the rules of pleading. Stevenson v. Farnsworth, 1 Gilman, 715, 717. The rule of our court having been devised to remedy a specific mischief, its construction ought to be as liberal as its terms will admit. Its efficacy would be much impaired if an attempt to avail one’s self of it *143must be treated as a technical plea in abatement, and subject to. all the incidents of such a plea under our practice.

We are of opinion, therefore, that the denial of the partnership in this ease is not to be regarded as a technical plea in abatement; but as a plea of special denial consistent with the ordinary pleas in bar, provided for by the rules and cognizable with them.

For the error pointed out the judgment will be reversed, with costs to the appellants, and the cause remanded, with directions to set aside the verdict and award a new trial, It is so ordered. ' Reversed and remanded.