Phillips v. Trowbridge Furniture Co.

Simmons, Justice. 1. One of the main issues in this case was whether [703] Mrs. Phillips was a partner of Neal. The plaintifl in its declaration alleged that she was; she denied it. It is complained of as error in the eighth ground of the motion for a new trial that, pending the trial, Kendall, the agent of the plaintifl, was allowed to testify, over objection of the defendant, “that Neal stated to him in Atlanta that Mrs. Philips was going in with, him and would furnish security to the amount of a thousand dollars.” We think the judge erred in admitting this testimony. It was a statement by Neal, not in the presence of Mrs. Phillips. The question in issue being whether Mrs. Phillips was a partner or not, she could not be bound by anything which Neal said. The rest of the evidence on the question of partnership not being conclusive, this testimony doubtless had considerable weight with the jury in finding that she w7as a partner. She was therefore prejudiced in her rights, and we think ought to have a new trial on this ground. 2. The fourth ground of the motion complains of the construction placed upon the writing given by Neal to the plaintifl. Counsel for the plaintifl in error contends that it w7as a bill of sale and a delivery of the goods thereunder in payment of the debt. We do not agree with him in this construction. In our opinion, under the facts, it was a written title to the property given by Neal to the plaintifl to secure the company for the purchase price of the furniture which had been sold to Neal, and a written assignment of the notes and accounts. Biggers v. Bird, 55 Ga. 650. It being a written title for this purpose, Neal had a right to give it, even if there was a partnership, bearing his individual name. One partner has the right to give a mortgage or other security upon personal partnership property to secure a partnership debt; and if Neal had the right to give it in the first instance as a partner, he also had the right to agree to its cancellation. Therefore, if Mrs. Phillips was a [704] partner, and. the title to the furniture and.assignment of the choses in action were given to secure a partnership debt, she was not injured thereby, nor was she injured by the cancellation of the same. If she was not a partner, but a security, and the title was taken by the plaintiff to the goods in the store and choses in action, and afterwards cancelled without her consent, and she was damaged thereby, of course she would be released to the extent she was damaged by such 'cancellation. The title covered the furniture in the store and the choses in action, and if the .creditor surrendered it, and the furniture and choses in action were afterwards lost, the "security’s liability to that extent would be increased. I will say in passing, however, that Mrs. Phillips in her answer makes no complaint of being injured in this manner, and, of course, could take no advantage of it on the next trial unless her answer be amended. She contends, as we have before remarked, that the writing is a bill of sale, and that its effect was to pay off and discharge the debt due by Neal to the plaintiff. This, we have shown, is not the correct interpretation of the instrument. 3. This being the proper construction to be given to the writing between the plaintiff and Neal, there was no error in refusing to give the requests to charge as complained of in the 6th and 7th grounds of the motion. These requests went upon the idea that it was a contract of sale between Neal and the plaintiff, and that the debt was paid off* and discharged thereby. 4. It appears from the record that Neal used in his business a certain “form of a contract” when he sold furniture to people upon the installment plan, reserving title, etc. In the progress of the trial, Mrs. Phillips offered one of these forms in evidence, proposing to prove it was the same form as that used by Neal and filled out by him when he made such sales. This was [705] excluded, and the ruling of the court is complained of as error in the 9th ground of the motion. There was no error in this ruling. The proper foundation was not laid for the introduction of this paper. One of the originals which had been executed should have been introduced, if obtainable. If none could be obtained from the original parties, or a certified copy of the same from the record, in case they had been recorded, then, perhaps, the paper presented might have been admissible. We can understand how, in case the jury upon the next trial should find that Mrs. Phillips-was.security, and not a partner, it might be material to show the number and amount of such contracts Neal had at the time the title given to the plaintiff was cancelled. 5. For the same reason the court did not err in excluding from evidence the “memorandum of the names and amounts of Neal’s customers as shown by his books the day after the bill of sale was made.” The original books should have been tendered or accounted for, before secondary evidence could be offered and admitted. Judgment reversed.