M. C. Lee & Co. v. Wilmerding

Stayton, Associate Justice. One of the controverted questions in this cause was, when was the firm composed of M. C. Lee and A. J. Roberson dissolved? In answer to an interrogatory which asked who composed the firm of M. C. Lee & Co. in the month of December, 1871, and the month of January, 1872, the witness answered that the firm was composed during those months of M. C. Lee and A. J. Roberson, and further answered that the firm so continued until the 15th of April, 1872. The latter part of the answer was objected to, because the answer was not responsive to the interrogatory, and the objection was overruled. This was error; for by the law then in force it., was provided that “ If any deposition shall contain any testimony not pertinent to the interrogatories propounded, such testimony shall be deemed surplusage and shall be stricken out by the court.” Pasch. Dig., 3732. Whether the same rule would apply under the statute now in force may be questioned, for, unlike the former law, it requires objection to be made thereto. R. S., 2237. It would seem that such objec [450] tion would go to the form and manner of taking, and that notice in writing should be given thereof before the trial commencés. Clement v. Cureton, 36 Ala., 120; McCrary v. Turk, 29 Ala., 244; Saltmarsh v. Bower, 34 Ala., 613; Weeks’ Law of Depositions, sec. 404. It was also objected that certain interrogatories addressed to M. C. Lee, one of the defendants, were leading, and on that account during the trial application was made to exclude the answers, and same was overruled, no notice of such objection having been given before the trial commenced. The interrogatories to which this objection applied were addressed by the plaintiffs to one of the defendants, and as it is a matter of discretion in the court under the circumstances of the case, and of the witness, to determine whether such an interrogatory shall be used or not, a cause would not be reversed upon the sole ground that a witness had been permitted to answer an interrogatory which was clearly leading. Whether an objection of this kind could be made when the deposition is offered in the trial of the cause, without notice thereof being given in writing before the trial commences, may well be questioned. The statute provides that “ Depositions may be read in evidence upon the trial of any suit in which they are taken, subject to all legal exceptions which might be made to the interrogatories and answers were the witness personally present before the court giving evidence.” R. S., 2236. This determines the character of exceptions "which may be taken, but does not provide or determine the time or manner in which such objection should be made. Objections to the form or manner of taking a deposition cannot be heard unless such objections are in writing, and notice thereof is given to the opposite counsel before the trial of suit commences. R. S., 2235. Objections which go to the competency of the witness or relevancy of the evidence may be made when the evidence is offered. The question as to whether an objection to an interrogatory, leading in its character, but which calls for an answer in no way objectionable, must be made in the manner provided for such objections as go to the manner and form of taking depositions, has not been directly before this court. In the case of Purnell v. Gandy, 46 Tex., 198, an objection had been taken to an interrogatory that was leading, and which called for the conclusion of. the witness as to a matter of opinion or of law, and it was held that the objection to the interrogatory and [451] answer did not go to the form and manner of taking the deposition, and that therefore written notice of intention to exclude it was not necessary. The writer is of the opinion that an objection to a deposition, upon the ground that an interrogatory is leading, goes to the manner and form of taking the deposition, and that correct practice requires notice of such objection to be given as provided by statute, or that otherwise such objection is waived. As was said by the supreme court of Ohio, “Exceptions to depo- . sitions for other causes than the competency of the witness, or the relevancy of the testimony, should not be heard unless noted on the depositions, or notice thereof given to the opposite party before the cause is called for trial. Objections to parts of depositions, merely formal in their nature, will be taken to have been waived, if not made, or notice thereof given to the other, party, until after the trial has commenced. To prevent parties from being taken by surprise during the progress of a trial, and for the furtherance of justice, this is required by the general rules of practice in the absence of any adopted rule of court to that effect. . . . The objection that a question is leading in its form is an objection, not to the substance or relevancy of the evidence, but to the form and manner of obtaining it, and should be made at the time the question is propounded ; but if not made then, or within proper time before the cause is called for trial, it will be fairly and reasonably taken to have been waived.” Crowell v. Western R. Bank, 3 Ohio, 409; Akers v. Demond, 103 Mass., 322; Kyle & Gunter v. Bostick at al., 10 Ala., 591; Towns et al. v. O’Brien et al., 2 Ala., 381; Overton v. Tracy, 14 S. & R., 324. In this cause certain interrogatories were propounded by the plaintiffs to Stowe, who was a plaintiff, and cross-interrogatories were also propounded to him, which called for a full statement of the account between Stowe & Wilmerding and M. C. Lee, one of the defendants. The witness declined to answer the cross-interrogatories in this regard. Before the commencement of the trial notice was given, as required by the statute, of the intention of the defendant Boberson to move the exclusion of the deposition. The defendant Boberson had filed an answer in which he alleged in substance that his partner, M. C. Lee, had forwarded to the plaintiffs various sums of money, and articles of property to be by them sold, which was the property of the firm composed of M. .0. Lee and himself, and that instead of appropriating the same in liquidation of the debt [452] sued upon, the plaintiffs, in collusion with Lee, and in fraud of his rights, had appropriated the same to" the account of Lee, and that if the proper appropriation was made, the claim sued upon was fully paid. Upon hearing the motion to exclude the deposition of Stowe, the court overruled it, and we are of the opinion that this was error, for the pleadings made the evidence desired relevant and proper. This action was brought to recover certain sums of money which the plaintiffs claimed to have paid at the request of the defendants to several mercantile firms and persons for bills of goods bought by the defendant firm, and for the payment of which they alleged that they became guarantors at the time th§ goods were bought. There was a controversy upon the trial as to whether the request of the defendant firm, which was made by M. 0. Lee, to the plaintiffs to pay for the goods was made before or after the dissolution of the firm of M. C. Lee & Co., and as to whether the plaintiffs had notice of such dissolution at the time the payments were made by them; and there were many charges given or refused bearing upon the liability of the defendant firm under the various aspects of the question as presented, the giving and refusing of which is assigned as error. For the disposition of the cause it is not necessary to consider these several assignments which call in question the giving and refusing to give the several charges, and we will only indicate the rules which ought to be applied in determining the ultimate rights of the parties. If the plaintiffs, at the request of the firm of M. C. Lee & Co., verbally guarantied the payment of bills of goods which they purchased, then upon payment of such bills by the plaintiffs when they became due. they are entitled to recover the same, whether such payments were made before or after the dissolution of the firm " of M. C. Lee & Co., and if after dissolution, whether there was notice of that fact or not: and this, notwithstanding the plaintiffs might have interposed the statute of frauds as a defense had they been sued by the sellers upon their verbal guaranty. Beal v. Brown, 13 Allen, 115; Cahill v. Bigelow, 18 Pick., 372; Ames v. Jackson, 115 Mass., 512; Browne on Statute of Frauds, 116, 135; Godden v. Pierson, 42 Ala., 374. It is true that the verbal guaranty was an imperfect obligation as between the sellers and plaintiffs, but it was upon valuable consideration, and, as between the plaintiffs and M. C. Lee & Co., not in violation of the statute of frauds, or of any rule of public policy. [453] It was an obligation morally binding, which M. 0. Lee & Co. had no right to ask them to violate by interposing the statute of frauds as a defense; nor had they even the right, when the bills matured and they failed to meet them themselves, to ask the plaintiffs to refrain from promptly paying them as they were morally bound to do. 18 Pick., 369, The request to make the guaranty in the first instance follows the transaction from its inception, and is a continuing element of contract which raises a promise to pay, that will exist until the promise thus raised is discharged by payment or otherwise; and with such obligation the dissolution of the firm can have no greater effect than it has upon any other debt contracted during the existence of the partnership. If there was no verbal guaranty made at the request of M. C. Lee & Co., at the time the bills of goods were purchased, but there was a subsequent request by that firm during its existence, to the plaintiffs, to pay the bills upon maturity, then if they did so, even after the dissolution of the firm of M. C. Lee & Co., with knowledge of such dissolution, without a revocation of such request, then the defendants would be liable; but if there was no such request save such as was given by M. C. Lee after the dissolution of the firm, then the defendant Roberson would not be liable, unless before the dissolution there had been a similar course of business between the firms, and no notice existed of such dissolution at the time the payments were made. For the errors indicated, the judgment is reversed and the cause remanded. Reversed and remanded. [Transferred to Tyler, and opinion rendered November 3, 1882.]