Kayser v. Sichel

Ingraham, J. In this case the defendants were sued as partners, for the amount of a„bill of goods sold them. In the answer the defendants set up as a defense that one Mann and one Knorr were partners in the transaction, and should have been joined as defendants. Upon the trial of the cause the defendants offered articles' of copartnership between the defendants and Mann, dated previous to the sale of the goods, and proved by a subscribing witness, which were objected to and excluded. The evidence did not show that Knorr was a partner. The articles of co-partnership were admissible to prove a partnership. Where' the members of a firm or any of them set up by way of defense that other persons than those sued were partners, they are held to strict proof of the existence of such partnership. The admissions of the parties not joined is not admissible, nor would the admissions of the defendants he received for such purpose. The only evidence that could he produced is the articles of copartnership, unless the defendants themselves are examined. This rule was stated by the court in Sweeting & White v. Turner, (10 John. 216,) in which it is said “If -the defendant and McNeil were partners they might have shown it by the production of the articles of copartnership, or by witnesses to the agreement.” I am, however, of opinion that the exclusion of the evidence may he sustained. The answer set up two persons not joined to have been partners. The articles produced only' showed that there was one person not joined. In Hawks v. Munger, (2 Hill, 200,) Judge. Oowen says "To sustain a [88] plea of nonjoinder it must appear in evidence that there is neither a greater nor less number of defendants than the plea sets up.” It would have been better to have received the evidence as to Mann and then ruled that it was insufficient to make out the defense as set up in the answer, without further proof as to the interest of Knorr in the firm. But as the evidence established that Knorr was not a partner, the exclusion of it worked no injury to the defendant. The other question is as to the right of the plaintiff to recover notwithstanding the credit which was given on the sale of the goods had .not expired when the action was brought. The plaintiffs claimed to recover upon the ground that the defendants had been guilty of a fraud in the purchase of the goods from them. The finding of the court sustains the allegation in that respect, and the plaintiffs might, therefore, have reclaimed the goods, or might have waived the tort and recovered in assumpsit for the value. The complaint charges that the plaintiffs sold to the defendants goods to the value of so much and that the defendants have not paid, &c. This question is fully discussed in Roth and others v. Palmer, (27 Barb. 652,) and it is unnecessary to add any thing to the opinion in that case. The judgment should be affirmed. Sutherland, J. concurred. Clerke, P. J. I. The judge, at the trial, properly refused to allow the defendants to show by written articles that Mann was a copartner of theirs, at the timé their liability to the plaintiffs was incurred. The answer averred a copart-' nership with Mann and Kñorr, and not with Mann alone. The instrument, therefore, had no relevancy to the question raised by the pleadings. Whether it would have been proper to have admitted it, if the answer had averred the partnership of Mann alone, it is not ncecssary for us now to decide. It appears from the opinion of the old supreme court [89] in Sweating v. Turner, (10 John. 216,) that the articles of copartnership were admissible in a plea of this description. But this was a dictum; it was not at all necessary to the decision of the case to determine that the written declarations of the defendants were admissible in their own favor, when their oral declarations confessedly could not be. II. Knorr, one of the parties to the release, was not a competent witness to prove its dissolution. To lay the foundation for the admission of any other evidence than that of the subscribing witness, it was necessary to prove that the latter was not capable of being examined, as that he was ■ dead, or incompetent to give evidence, from insanity or infamy of character, or absent in a foreign country, or that he could not be found after strict and diligent inquiry. This rule has not not been directly or indirectly repealed or modified by the code, or any other legislative provision. Even if the execution of this release were properly proved, the instrument was not rélevant. It expressly contradicted the allegation in the answer that Mann and Knorr both were partners. III. The plaintiffs were not hound to bring an action of tort for the fraud. It was sufficient to sue generally for the sale and delivery of the goods, and when the defendants showed that they were sold on a credit, which had not yet expired, the plaintiffs in reply could show that this credit was obtained by fraudulent representations: that, consequently, they rescinded this particular express contract, and that they relied for recovery on the contract which the law in such cases implies, namely, that the defendants are liable for immediate payment, precisely as if no express contract had ever been made. This, I think, is fully established by all the recent adjudications in our courts, particularly in the cases of Roth v. Palmer, and Tobey v. Palmer, (27 Barb. 652;) where the subject is thoroughly discussed. The bringing of the action, and the offer at the trial to surrender and [90] cancel the notes, were a sufficient exercise of the plaintiffs’ right to rescind the express contract. [New York General Term, February 4, 1861. The judgment should he affirmed with costs. Judgment affirmed. Clerke, Sutherland and Ingraham, Justices.]