31 Md. 174 | Md. | 1869
delivered the opinion of the Court.
The question substantially presented by the first bill of exceptions is, whether, in an action against one partner, it is competent for the plaintiff to offer evidence of a partnership, whereby to charge the defendant with goods sold and delivered to the firm.
As a general rule, it is true, that in actions upon partnership contracts all the partners ought to be made defendants, but it is also equally well established that the omission to do so can only be taken advantage of by plea in abatement.
In the language of Lord Mansfield, in Rice vs. Shute, 5 Burr., 2611, “ All contracts with partners are joint and several: every partner is liable to pay the whole. In what proportion the others should contribute, is a matter merely among themselves.”
If, however, the plaintiff does not declare jointly, the defect can only be pleaded in abatement, and in default of such a plea, “ the joint contract may be offered in evidence in support of the separate contract declared on.” Collyer on Partnership, 715.
Accordingly, in Barry vs. Foyles, 1 Peters, 316, where one partner was sued as the sole contracting party, it was held that evidence of a joint assumpsit was admissible whereby to charge the defendant.
In the case now before us, the defendant did not plead in abatement, and the evidence to prove a partnership between the defendant and his son, Samuel J., was, therefore, clearly admissible.
The objection to interrogatory No. 2|, on the ground that it was “ leading,” was properly overruled. Being to the form and manner in which the question was put, the objection should have been made before the commissioner. This was decided in Striker vs. Todd, 13 Sergt. & Rawle, 13, and upon the ground that if made at that time the question might have been modified to meet the objection.
"We think it was competent and proper for the plaintiff to explain why the goods were charged to the father, and the circumstances under which they were delivered.
We find no error in overruling the objection to the fifth interrogatory. The defendant having offered evidence to prove that the “ cans ” mentioned in the declaration were sold to Theodore R. Smith, it was competent for the plaintiff, in rebutting this testimony, to prove what was the credit of Theodore, and to explain why he would not have furnished to him the cans in controversy.
The offer on the part of the defendant to prove that Holmes, the foreman and agent of the plaintiff, had repeatedly declared, in the summer of 1868, whilst he was engaged in manufacturing the cans, that he was selling the same to Theodore R. Smith, was properly rejected. The evidence was liable to two objections: first, if for the purpose of impeaching the witness Holmes, he should have been asked whether he had ever made such declarations ; and secondly, having been made after the alleged contract, they were not binding on the plaintiff.
The representation or declaration of an agent does not bind the principal, unless made at the time of the contract. Story on Agency, 135.
They are no part of the res gestee, if made after the contract is consummated, and are not admissible in evidence against the principal.
We see no objection to the plaintiff’s first prayer. In order to find" for the plaintiff, the jury was instructed that they must believe from the evidence, that the cans mentioned in the plaintiff’s declaration, were furnished and
The third prayer-of the defendant was properly rejected. It excluded from the jury the evidence of Holmes, as contradicting the witness Samuel J. Smith, who had testified that he never said his father was a member of the firm.
The fourth prayer was fully covered by the plaintiff’s first, and the defendant’s fifth prayer, which were granted.
The defendant suffered no injury, therefore, by its rejection.
Finding no error in the rulings of the Court below, the judgment will be afiirmed.
Judgment affirmed.
