J. B. Larzelere & Son v. Tiel

Opinion by Smith, J., (after stating the facts as above): With the evidence preponderating greatly in favor of the plaintiffs, the learned trial judge delivered a charge to the jury which in phrase and substance was marked by a very strong bias in favor of the defendants. The brief allusions to the evidence in the charge are opposed to the weight of the testimony, and, in the light of the evidence, the instructions were inadequate, unwarranted, misleading and inconsistent. The agreement does not provide, as the learned judge said, •that the debt mentioned in the articles should be considered a *115 partnership debt, to be paid out of the partnership assets. Tooley agreed to assume one half of the indebtedness “ against ” the property contributed by Tiel; but without more this would not make it a partnership debt; nor is there anything in the agreement limiting its payment to the partnership assets. Prima facie and by implication the one half of the indebtedness in the articles was assumed by Tooley in consideration of the equal interest he acquired in the property contributed by Tiel, and an action for it might be maintained against Tooley upon delivery of the property to the firm. True the partners might have made it a firm debt in the agreement, or by a subsequent one, and being the purchase money of property received by the firm there would be air equitable consideration; but the language of the articles will not justify such a construction. This erroneous view leaves out of sight the terms of the articles, as well as the testimony of Tiel to the effect that Tooley was to pay down from $800 to $400, which was to be applied to the appellants’ claim against Tiel. The learned judge’s construction of the articles would limit Tooley’s liability for the one half of his debt to his interest in the partnership assets, and if these were lost before its payment, he would be absolved from personal liability and the debt would remain Tiel’s alone. Tooley, it is true, said that his part was to be paid out of the earnings; but Tiel's testimony is to the contrary, and the point was in dispute. There is nothing in the testimony indicating that the firm assumed any of this debt, except what is due to the appellants, or relieving Tooley from his liability according to the provisions of the articles. The court was greatly in error in saying to the jury that Tooley knew nothing about the transactions upon which the appellants based their claim against the firm, and that there was no evidence contradicting Tooley’s testimony to that effect, opposed as it was by the testimony of two witnesses, the documentary proofs, a part of which Tooley made himself, and Tooley’s admission that he signed one of the notes to the appellants given in payment of “the $700 indebtedness,” and which in fact included a part of the Tiel debt, and that this was the understanding when he gave it. It was equally erroneous for the court to instruct the jury that it was the duty of the plaintiffs to go to Tooley and inform him that Tiel agreed to make their claim a partnership debt and get his assent to it. This might *116 have been a prudent step, but no such duty rested upon the appellants. According to the testimony of the appellants’ witnesses this would be superfluous, as they testified that Tooley had agreed to the assumption of the debt, and it had been carried by the firm papér with his consent for over six months. The instruction would naturally mislead the jury into believing that Tooley could not be bound unless he agreed with the appellants personally; in this, the learned judge ignored all the testimony to the effect that Tooley had so agreed, and laid down, as a rule of law, a measure of duty unwarranted by legal authority. It was misleading to suggest to the jury that Tiel should have gone to Tooley and “definitely and positively” said to him: “ I owe Mr. Larzelere so much money, and I have agreed that it shall become a partnership debt.” The parties had a right to transact the business in their own language and in their own way; the law does not prescribe the language or actions of men in everyday business life, and courts and juries are concerned only with that which actually took place and its legal effect: Phila. Trust etc. Co. v. Railroad Co., 177 Pa. 38. It would have been more to the point to have called the attention of the jury to what had heen said on behalf of both parties, and stated for their guidance the rules of law applicable thereto. Nor is there any authority to sustain the instruction of the learned judge, that before they could find for the appellants “ there must be evidence that Mr. Tooley expressly agreed with Mr. Larzelere that it should become a partnership debt, and it is your duty to find that by evidence and not by inference. It would be a very great injustice to his partner to infer it simply from the transactions which afterwards occurred. It would be a great hardship if one partner is made liable for such debt, unless there is evidence of it.” It is settled law that when copartners by their language or actions authorize or ratify the application of firm assets to the payment of the individual debt of one of them, all will be bound by such application. The question is primarily one of consent, and this may be gathered and inferred from the attending circumstances, such as the knowledge of the other partners, that the assets are being so applied, and their acquiescence therein: Todd v. Lorah, 75 Pa. 155; Leonard v. Smith, 162 Pa. 284. *117 But is this a case where one partner seeks to pay Ms individual debts with the firm’s assets ? If, as indicated by the articles and the testimony for the plaintiffs, the property for which Tiel was indebted to the appellants went into the partnership stock, under an agreement that the firm should secure or assume the balance due for it, and that was the consideration for the transfer, then in equity and good conscience it was the firm’s debt; and if they assumed it by their notes, they cannot now repudiate those obligations, and the court should have so instructed the jury: Lindley on Partnership, 705; Siegel v. Chidsey, 28 Pa. 279; Walker v. Marine Bank, 98 Pa. 574. The reinarles of the learned judge, that it would be a great injustice to Tooley to infer the assumption of the appellants’ claim from the transactions after the organization of the firm, were clearly erroneous. If, as testified, Tooley knew and assented to the giving of the notes which included the appellants’ claim against Tiel, and gave one of them himself, then the jury were bound to infer tbis, if indeed inference were necessary, from those subsequent transactions. This remark and the subsequent one that “ It would be a great hardship if one partner is made liable for such a debt unless there is evidence of it,” were both uncalled for, and naturally prejudiced the jury. If the positive evidence, oral and written, to the effect that Tooley did assume the appellants’ claim against Tiel, be true, it was in effect telling the jury that it would be “ a great injustice ” and “ hardship ” to make him pay for the property wMeh he bought and held as copartner. It was also an error to say that the agreement to pay the appellants’ claim should be found “ by evidence, and not by inference,” and at another time to say that they might find it “ by inference or expressed words.” From these inconsistent statements, the jury could deduce no intelligent or correct rule to guide them. But it is contended that even if the learned judge erroneously said there was no evidence on material'points, and ascribed grave importance to the absence of tilings which were not essential, yet because he said to the jury, “I have already said that I have not seen any evidence of that kind; but that is only my own opinion, and is not binding upon you; ” he thereby left the whole case to them for decision, and hence they were not concluded or affected by Ms remarks, and the judgment must stand. *118 That is not the law; on the contrary, our Supreme Court has rightly said that even frequent declarations to the jury that all the evidence was for their consideration does not cure a biased charge : Lerch v. Bard, 177 Pa. 197. In the case last cited the Supreme Court further says: “We' know, the learned judge of the court below and every lawyer knows, how unfavorable may be the impression made upon, generally, untrained thinkers, who must deliberate and form conclusions within a very few hours, by prominently presenting, as the last word to them, only one side of a disputed cause, and this, too, by a judge eminent because of his judicial integrity, and ability; ” remarks peculiarly applicable here. To hold that a trial judge may partially and inadequately present the facts to a jury in positive terms, and that the injured party has no remedy for this, simply because he told them that, his opinion was not binding on them, would be grossly unjust, and subject the administration of the law to ridicule and contempt. Courts and juries are organized for the purpose of administering justice through the forms of law. The function of the court- is to direct the course of the trial within the rules of procedure and evidence, and to expound the law applicable to the questions raised, for the guidance of the jury. In commenting on the evidence the court should deal with that of both sides equally and impartially, and leave to the jury their exclusive right to determine the facts. When the trial judge discusses the evidence the jury are apt to accept his presentation as the correct view of it and find a verdict accordingly. It is therefore of the last importance that'the judge should discard all personal views and treat the evidence on both sides with equal candor and consideration. To present but one side of it, or to belittle that of either side, or to say there is no evidence on a material point when in fact there is, all of which was done in this case, is unfair and erroneous, and the ends of justice, therefore, peremptorily demand a reversal of the judgment. The main issue of fact was whether Tiel and Tooley assumed the individual indebtedness of Tiel to the appellants, expressly, or by a course of dealing which would estop them from denying that they had done so, and it called for the application of simple and familiar principles of law. *119 Tlie partnership articles bound the partners, and Toole'y’s allegation, denied by Tiel, that the indebtedness mentioned was for feed and not for horses and wagons as stated in the agreement, could not prevail against the writing unless sustained by another witness or corroborating circumstances; the agreement being silent as to the exact amount of the debt and to whom it was due, oral testimony might be resorted to in order to ascertain those facts, if they became material. If the partners agreed' to pay, or to assume by notes, the balance due to the appellants on property contributed by Tiel to the partnership stock, in lieu of paying Tiel for it, and payments were made and notes given for that purpose, the transaction was lawful and binding; the firm was but paying for the property transferred to it. The seven assignments of error are to the charge and answers-to points. The sixth and seventh were not argued or pressed; the first five are sustained, the judgment is reversed and a venire facias de novo is awarded.