Spalding v. Hedges

Gibson, C. J. — It is necessary only to state the facts on which the point depended, to show that Doctor Burgin was not interested in the event of the suit. The plaintiff was the owner of land divided into town lots according to a general plan, which he sold in shares to the members of a joint stock company formed by him, and conveyed the legal title to two trustees nominated by the company to receive it, and convey the lots according to its direction. The capital stock consisted of six hundred and eighty lots, divided into seventy shares, which were separately sold by the plaintiff to the shareholders, each of whom gave separate promissory notes for the price of his share; on two of which the action before us is founded. Doctor Burgin, the proposed witness, was a shareholder and a trustee, but either in the character of the one or the other, it is difficult to perceive what he had to do with the separate bargain between the plaintiff and the defendant. Had the shareholders purchased jointly, all would have been liable for every part of the purchase money, and all would consequently have been interested in every measure to make the defaulters pay up ; but it is not pretended that they were liable for each other. They were partners, it is true, but they were partners to sell, not to buy. They bought their shares separately, and put them together when bought, as common stock, to be sold at a profit by retail. To [243] constitute partnership, it is by no means necessary that the capital stock be put in as money. Each partner may contribute his share in the form of the specific article to be dealt in ; and where that is the case, the other contributors have no imaginable interest in the event of an action brought for the price of it by him from whom the contributing partner purchased it. Exactly such was the case in the court below; and the remarks already applied to it, dispose, in the same way, of the ruling out of Pearce’s deposition on the ground of interest, without recurring to the principle by which the defendant is supposed to have made it competent, though the fact of interest were confessed. The other exceptions are unfounded. The printed circular, the advertisement published in the American Sentinel, and Pearce’s subsequent letter, produced by the defendant to Doctor Burgin, had no connection with the alleged misrepresentation at the time of the bargain; the evidence of which it wras proposed to rebut. It would have availed nothing to show that sources of accurate information were open to the defendant at the time, or that the plaintiff had, on other occasions, represented the property to be what it truly was; and, as independent evidence, it is not contended that the documents were competent. Neither was the “ Gazetteer abstracted from the Universal Gazetteer,” and published in 1818, competent evidence of the distance between St. Louis and Bellefontaine, where the property is situate. Even a book of general history, though competent to prove by-gone matters which concerned the country at large, is not so to prove matters of private right; and it is incompetent for any purpose, on an obvious principle, where better evidence can be had. In a case cited in Stainer v. The Burgesses of Droitwitch, 2 Salk. 282 ; Dugdale’s Monasticon was not allowed to prove an abbey to be of an inferior order, because recourse might have been had to the records. Now the distance between places in our own county is susceptible of proof by witnesses who know the fact, and whose testimony is certainly better than the crude information collected by the editor of a book of topography, from what sources we know not, and published when the place of which he professes to treat was scarcely known to exist. Even actual surveys of a country are evidence of its topography only when they are backed by great antiquity or public authority. Of the remaining exception it is scarce necessary to speak. The defence can be maintained only on a rescission of the contract; and when that is established, the defendant’s share will revert to the plaintiff when he. refunds what he has already received. He will then be entitled to the plaintiff’s certificate, which may be surrendered at the trial, or whenever else the money shall be repaid. Judgment reversed, and venire de novo awarded.