Treadwell v. Wells

| Cal. | Jul 15, 1854

Mr. Ch. J. Murray

delivered the opinion of the Court.

Mr. Justice Wells concurred.

This action was brought against the retiring partners of an old firm, to recover for an amount due from the new firm, on the grounds that the plaintiffs were previous dealers, and had not been notified of the dissolution and continuation of the business by a new partnership.

The cause was tried by a jury, and a verdict rendered for the defendants, from which the plaintiffs appealed.

The errors assigned are:

1st. The admission of certain newspapers in evidence *containing certain notices of the dissolution, [263] which papers were not taken by the plaintiffs.

It appears by the record, that one of the papers so admit-, ted, and containing such notice, was taken by the plaintiffs, and left at their place of business for several weeks. Upon this proof, we see no error in admitting other papers in evidence, by way of establishing the publicity of the notice, and raising the presumption of actual knowledge on the part of the plaintiffs, ¡

2d. That the Court erred in charging the jury that “the publication of the notice of dissolution in a paper taken by the plaintiffs, was a fact from which they might infer actual notice. ”

So far from this being error, it has never been doubted within our knowledge, and in the precise language of this Court in the decision of Fgery & Hinckley v. Wells.

3d. “The refusal of the Court to instruct the jury that the proof showed that the plaintiffs were previous dealers.”

The Court properly refused this instruction, having no right to charge the jury with respect to matters of fact.

4th. “That the Court erred in instructing the jury that if sufficient time had elapsed between the dealings of the plaintiffs with the old firm, and their subsequent transactions with the new firm, to put a reasonable man upon inquiry, that the plaintiffs might be treated as new dealers.”

We see no error in this instruction, and we believe the rule to be founded on right reason and sound policy.

5th. “That the Court erred in allowing a witness to refer to, and testify from, the defendants’ books.”

The witness was the defendants’ book-keeper, and was properly allowed, by the soundest rules of evidence, to refer to the defendants’ books to refresh his memory, with regard to the plaintiffs’ account.

We are not disposed to consider the objection taken to the form of the verdict and the judgment entered thereon, inasmuch as it was received and recorded by the consent of the plaintiffs.

Judgment affirmed, with costs.