113 Ga. 872 | Ga. | 1901
A material question of fact raised by' the pleadings was whether a partnership existed between plaintiff in error and •one A. N. Ivancich, and that question was by the jury determined against the former. He complained in his motion for a new trial that the verdict rendered was contrary to the evidence, and that the judge erred in certain rulings of law, and that he was therefore entitled to a new trial. It is contended on the part of the defendant in error that the evidence was sufficient to show that a partnership ■did exist between Smith and Ivancich, but, in the event this conclusion was not demanded by the evidence, that, as to the defendant in error, Smith is estopped from denying its existence, because of representations made by him to Ferrario that the partnership ex
So it will be seen that, in addition to the admissions made by Smith of the existence of the partnership, there was evidence from Ivancich, not as a witness, but as tó his saying that a partnership existed between Smith and himself. Certainly Ivancich would have been a competent witness to testify as to the existence or nonexistence of the partnership. Certainly, too, after the fact that the partnership existed had been established, the sayings of Ivancich that the notes were given in the regular course of business, etc., would have been admissible for the purpose of binding the partnership. But we apprehend that there can be no question that proof of the sayings of Ivancich as to the existence of the partnership was inadmissible. Being in evidence, the effect of these sayings was not limited by the charge of the court. On the contrary the jury were told to take all the evidence in the case as well as the admissions, any direct evidence, circumstantial or otherwise, any evidence that will illustrate the question, and weigh it all and say whether the evidence shows that a partnership existed. Certainly these instructions were sufficient to embrace the sayings of 'Ivancich, which were not admissible for that purpose, and which could not legally have been considered in determining the question whether the partnership existed. Therefore, while it is easy of determination that the admissions which Smith made were amply sufficient to support a finding that a partnership existed, we are notable to say that the finding of the jury was based on these admissions. It may have been based upon the sayings of Ivancich. If so, it ought to be set aside. But inasmuch as the jury were allowed to consider these sayings at all for this purpose, and the admissions-of Smith, because- of his testimony, did not compel a verdict that the partnership existed, it must be ruled that the charge was error, and materially affected the rights of the defendant.
Judgment reversed.