Smith v. Collins

115 Mass. 388 | Mass. | 1874

Colt, J.

The verdict was against Collins and Drake, as part ners of Newton in the cattle business. It has been set aside «t against the weight of evidence as to Collins on a motion for a new trial. The exceptions remain to be disposed of as to Drake, the vnly other party defending.

The plaintiff sues for money lent on two occasions to the firm. The first money was paid by him to Drake, the last to Newton. Drake gave the plaintiff a check signed by himself and Newton in their individual names, which the plaintiff testified was a memorandum check to be held by him until the money was repaid. This check was given up on payment of most of the money lent, and on the giving of another check for the balance, signed by Newton alone, which it was contended was also received as a memorandum, and never presented for payment. When the last money was lent the plaintiff took Newton’s check for an amount large enough to cover the money then advanced, and the former unpaid check. The last check was protested for non-payment.

It was contended by the defendants that the only remedy of the plaintiff was upon the Newton checks; either because they were taken as payment of the original claim if any against the firm, or because in the original transaction credit was exclusively given to him. But there was evidence that both sums were advanced by the plaintiff solely upon the credit of the firm, and that the checks were not taken by him in payment. This was a question for the jury, depending upon the intent, understanding and agreement of the parties. The presiding judge so ruled and submitted it to them with suitable instructions. Taylor v. Wilson, 11 Met. 44. Allen v. Coit, 6 Hill, 318. Thompson v. Percival, 5 B. & Ad. 925.

The refusal to rule that upon all the evidence the plaintiff had established no claim against Collins and Drake is not open to exception, unless it appears that there was no evidence to warrant the verdict. The question here is not whether the verdict was against the weight of evidence, but whether there is any evidence however slight which, though contradicted by other evidence can properly be submitted to the jury, and upon which they can legally find for the plaintiff. Forsyth v. Hooper, 11 Allen, 419.

The plaintiff relied on evidence both that the alleged partnership in fact existed, and that Collins and Drake so held themselves out to him at the time of these transactions.

Upon the issues thus presented the declarations and admissions of the alleged partners respectively were properly admitted, and their effect limited by the judge in accordance with established principles. The statements of the individual partners were com petent to charge them respectively upon the question of the existence of the partnership in fact, and the nature and scope of its business. When made to other persons they were excluded as not competent to show that Collins and Drake were liable by reason of having held Newton out as a partner, and thereby induced the plaintiff to trust him. And the jury were told that the declarations of either would not be competent to prove that the others were his partners. Currier v. Silloway, 1 Allen, 19. Fitch v. Harrington, 13 Gray, 468.

For the purpose of showing the nature and scope of the alleged partnership, and the manner of transacting its business, evidence of the common and usual dealings of persons engaged in the cattle business at this locality was competent; each member of the partnership must be presumed to have intended to clothe the others with all the powers incident to and usually exercised in that business. The evidence tended to show that the cattle business is the business of buying and selling cattle ; that a partnership in such business is a trading partnership, which has the right to borrow money. Etheridge v. Binney, 9 Pick. 272. Winship v. United States Bank, 5 Pet. 529, 560. Parke, J., in Dickinson v. Valpy, 10 B. & C. 128, 140. Boardman v. Gore, 15 Mass. 331, 340. Story Part. § 126.

The exclusion of the testimony, as to settlements made by two of the witnesses called by the plaintiff to prove the partnership, which was offered to show conduct inconsistent with their testimony, cannot be properly excepted to, because it does not appear that the transactions so settled were such as came within the business of the alleged partnership. They may have been dealings with Newton as a member of another firm, or upon his individual credit. And if so there was no inconsistency apparent in the conduct of the parties.

It was contended that the defendants were interested only in certain specific transactions which did not constitute a general partnership, and did not authorize either one to borrow money on the credit of the others. But upon a careful review of all the evidence we cannot say as matter of *aw that there was not enough to warrant a verdict for the plaintiff against Drake on one or both grounds upon which a more general partnership waa contended for.

It was objected that the judge erroneously admitted the statements of Newton made at the time the last money was advanced as to the purpose for which he borrowed it, showing that it was for the use of the firm. But it is well settled that if Collins and Drake were in fact partners with Newton, or had so held themselves out to the plaintiff, then Newton’s statement that he was borrowing the money for the use of the firm is competent against all. It is precisely the same as if he had given the partnership-note to the plaintiff, which would be binding on all, notwithstanding a subsequent misapplication of the money. They were statements accompanying the act of borrowing the money, part of the transaction itself, not subsequent admissions, as in Ostrom v. Jacobs, 9 Met. 454 ; Tuttle v. Cooper, 5 Pick. 414, and other cases cited by the defendants. Etheridge v. Binney, supra. Winship v. United States Bank, supra.

Exceptions overruled.