Worthington v. Miller's Adm'r

| Ky. Ct. App. | Mar 8, 1887

CHIEF JUSTICE PRYOR

delivered the opinion op the court.

This case has been heretofore in this court, once on the appeal of Miller’s administrator, and once on the appeal of Worthington, and is now here for the third time. The action was instituted by the administrator of Miller on the following obligation : “Une John I. Miller, two hundred and thirty-five dollars and forty cents. James Whipps & Co.” The action being against the firm of James Whipps & Co., the petition alleging that James Whipps and Henry Worthington were members, and that Wilcox, the other member, was dead or had retired from the firm. Worthington denied by his answer the existence of any such firm, or that Whipps had any • authority to sign his name to such a paper, or to make him liable as a member of a firm to which he never belonged. That Whipps was the mere agent to purchase tobacco for him (Worthington) and Wilcox, and with- •• out any power to sign their names in any way to paper evidencing an indebtedness. He further pleaded payment to the intestate for the tobacco for which this note was executed. Issues were made as to the existence of the partnership and on the plea of payment.

When the case was here on the appeal of the administrator of Miller, it was held that Whipps, being sued .as a member of the firm, was incompetent to testify as to the jiayment by him to the intestate, and a reversal on that account was had. When it went back there was a judgment against Worthington and James Whipps that was brought here on Worthington’s appeal, and reversed on account of an erroneous instruction.

Whipps did not appeal, but the supersedeas was ex•ecuted by Worthington, and the case sent back, the judgment being reversed, leaving, as Worthington contends, the judgment in full force as to Whipps, but reversed as to him, Worthington.

On the return of the case Worthington offered •Whipps as a witness to prove payment, insisting that the latter was no longer a party to the action, and had no interest in the result. The court refused to permit the witness to testify, and this is the error complained •of.

Whipps was insolvent, and, therefore, was not par".ticularly interested in the result. Whether solvent or insolvent, and waiving the question that as the obligation sued on was a firm liability, and proceeded on as. such, the judgment was a unit. It seems to us that the individual liability assumed by one partner in permitting judgment by default to go against him can not render him a competent witness to testify for the other-partners with reference to the same transaction as to-what transpired between the witness and the dead man as to the payment of this note. If paid, it relieves the-partnership from any liability for the debt, and while-the partnership assets might be amply sufficient to satisfy the judgment, a member of the firm is permitted to testify as against the intestate that he paid to the intestate in his lifetime the entire amount, thereby exonerating the firm from the payment of the firm debt.

The firm is the party defendant to the action, and no-member of it can testify as to transactions with the-decedent so as to absolve the firm from its obligation. There was no error, therefore, in refusing to permit the witness to testify.

Judgment affirmed.