87 Mich. 594 | Mich. | 1891
This is an action of assumpsit, commenced by attachment September 25, 1889, against John and Albert Weimeister. John died October 3, 1889; and April 29, 1890, his death was suggested, and the suit revived against the defendant. The sole question in controversy was whether John and Albert were copartners.
John Weimeister and one Neil O'Hearn had been for many years engaged in general merchandising and banking in the village of Howell. August 8, 1889, they dissolved, O'Hearn selling to John Weimeister. John Weimeister continued in the business, and plaintiffs claim that Albert became a partner with John; and also that, whether he was in fact a partner or not, he is estopped by his acts and conduct from denying it. Upon the dissolution of the firm of Weimeister & O'Hearn the business was continued,- both in banking and merchandising, under the name of John Weimeister & Co., until September 25, 1889, when John Weimeister executed an assignment for the benefit of his creditors, and both the bank and the store were thereupon closed.
Albert admits that for some time prior to the dissolution on August 8 there had been an understanding between himself and John Weimeister that O'Hearn should go out and Albert should become a partner; that upon the dissolution of the old firm he immediately commenced to sign drafts by the name of John Weimeister & Co., and continued to do so up to the time of the failure; that he went to Detroit, and ordered a stamp, which read, “John Weimeister & Co., Successors;" also another, which l’ead, “John Weimeister & Co. Paid,"— which stamps were in constant use; that he bought goods in the name of the new firm, informing the vendors that
No other conclusion could honestly have been reached by the jury than that John and Albert were not only estopped from denying that they were partners, but that they were partners in fact.
After this statement of facts, the alleged errors can be very readily disposed of.
1. The affidavit for attachment and the declaration did not alleged that John and Albert were partners. They simply alleged that John and Albert, the defendants, were justly indebted to the plaintiffs in a certain sum. It is insisted that proof of the partnership was inadmissible
2. At the time of the change in the firm plaintiffs had a deposit in the bank, and were also contemplating future deposits, which were - afterwards made. On learning of the change, the plaintiff Wright went to the bank to-ascertain the facts in regard to it. Neither John nor Albert was there. Mr. Hammell was there, in sole charge-of the business, as was usually the case. Mr. Wright sought information in the due course of business. His future course would be shaped by the information obtained. He went to the usual place of 'business. He found there the general agent in charge. He went to the proper place and to the proper party to make inquiries. This testimony was objected to as incompetent, and this is the principal question now in controversy. When this testimony was offered, HammelFs agency had been fully established, and convincing evidence of the existence- of the partnership had been introduced. The evidence was properly admitted. The statements were part of the res gestae.
3. It was competent for the plaintiffs to testify that they subsequently deposited money in the bank, relying upon the information they received from Mr. Hammell. It was necessary for the plaintiffs to prove this under the theory of estoppel.
4. Under the circumstances of this case, we see no error in permitting the plaintiff Wright to testify that from the time of this conversation with Mr. Hammell he understood that John and Albert composed the firm. This point is ruled by Parshall v. Fisher, 43 Mich. 529.
5. The statute of Michigan requires that all persons engaged in the business of banking shall make and file with the county clerk a certificate in writing, setting
We find no error in the record, and the judgment is affirmed.