Vanderhurst, Sanborn, & Co. v. De Witt

De Haven, J. Action upon a promissory note. The trial was by a jury, and resulted in a verdict and judgment in favor of plaintiffs, and the defendant William De Witt appeals. The note sued upon is signed “ Geo. & Wm. De Witt,” and was in fact so signed and delivered to plaintiffs by the defendant George W. De Witt. The appellant alleges in his answer that the note was executed without his knowledge and authority. The evidence upon the trial tended to show that the note was made by George W. De Witt in settlement of an account which the plaintiffs had against him for merchandise furnished to and used by him in carrying on a certain farming and thrashing business, in which business the respondénts claim that the appellant and the said George W. De Witt were in fact partners. The"evidence further shows that at the time the goods and merchandise were sold, they were charged personally to George W. De Witt, and appellant [62] was not at the time held out to respondents as a partner in the business referred to, nor' did they know of the existence of the partnership now alleged. 1. It will be seen from the foregoing statement that the right of the respondents to maintain this action against the appellant really turns upon the question whether he was in fact a partner of the defendant George W. De Witt in the business referred to, and upon this point the court instructed the jury, in substance, that in order to constitute such partnership, there must have been an agreement between the appellant and his co-defendant to carry on the business together, and to divide the profits between them, and that the fact that appellant was to receive one half of the net profits of the farming and thrashing business would not make him a partner therein, if the understanding and agreement between the parties was, that he was to receive the same only as a compensation for the use of certain personal property let by him to George W. De Witt, to be used by said George W. De Witt in the prosecution of that business solely on his own account. The evidence upon the part of the appellant tended to show the facts referred to in this instruction, and the instruction was a correct statement of the law upon the subject to which it relates. (Kellogg v. Farrell, 88 Mo. 594; McDonald v. Matney, 82 Mo. 358; Lindley on Partnership, 2d ed., marg. p. 35.) But upon the trial the court, against the objection and exception of the appellant, admitted evidence of the declarations of the defendant George W. De Witt, not made in the presence of the appellant, to the effect that he and the appellant were such partners. There was error in the admission of this evidence. It is well settled that upon such an issue the declaration of an alleged partner, made in the absence of the other, cannot, as against the absent one, be used to establish the fact of partnership. (Cowan v. Kinney, 33 Ohio St. 422; Flanagin v. Champion, 2 N. J. Eq. 54; Dutton v. Woodman, 9 Cush. 255; 57 Am. Dec. 46; Whitney [63] v. Ferris, 10 Johns. 66; McPherson v. Rathbone, 7 Wend. 216; Butte Hardware Co. v. Wallace, 59 Conn. 336.) In Dutton v. Woodman, 9 Cush. 255, 57 Am. Dec. 46, the rule which excludes such declarations, and the self-evident reason upon -which it is based, is thus stated byBigelow, J.: “The authority of Thurston and I. F. Woodman to bind E. W. Woodman by their statements and declarations depend entirely upon the existence of the copartnership. Until that was proved, E. W. Woodman was not shown to have had any connection with either of them, and as that was the point in controversy before the jury to be determined by their verdict, evidence xvhich would be admissible only upon the assumption of the existence of the copartnership was clearly incompetent, when offered to prove the fact upon which its competency depended.” This evidence being incompetent, and relating, as it did, to a material question in the case, the judgment and the order denying appellant’s motion for a new trial must be reversed. Judgment and order reversed. Sharpstein, J., Paterson, J., McFarland, J., Harrison, J., and Garoutte, J., concurred. Rehearing denied.