Bartley v. Williams

The opinion of the court was delivered, January 3d 1871, by Agnew, J. — It may be conceded that ordinarily in the case of a partnership trover or replevin will not lie by one partner against another for the possession of goods; but that a conversion must be followed by an aqtion for an account. But such is not this case. Here we have a mutual agreement of dissolution between the partners, under seal, and therefore importing a consideration, in which they agree or covenant with each other that all the assets of the firm shall be taken by Williams, who shall liquidate the debts of the firm so far as the assets will go ; that he only shall recover the debts due to the firm, and finally shall pay over to Addy and Bartley, their shares of the profits if any, they agreeing to make good their shares of the deficiency if any. The covenants here are mutual and in consideration of each other, and are, therefore, more than the mere constitution of an agency. The instrument confers rights, as well as powers, and is not revocable. The action of trover can well be maintained: Kahle v. Sneed, 9 P. F. Smith 389; Corbett v. Lewis, 3 P. F. Smith 330. There was no error in the answers given to the 2d, 3d and 4th points. It should never be forgotten that oral testimony is always for the jury, and not for the court, when what it is, or what is its effect, is the question for determination. The notes of counsel or of court are not the testimony of the witness. When he has spoken, the words die with his utterance, and leave their legal impress only on the memories of the jurors. Therefore, when the counsel asked the court to charge that the testimony of Neal proved no demand sufficient to establish a conversion, and that the testimony of Rush 332 and Irwin proved no such refusal as amounted to a conversion, they asked the court to determine what their testimony was, as well as its effect. This it was not competent for the court to do without usurping the province of the jury. Where a point is put to the court' upon oral testimony, it must always state the evidence hypothetically, leaving it to the jury to determine what the fact is, and then to apply to it the instruction of the court as given upon the supposed state of the fact. It would have been easy to have asked the court to say that if the jury believed, from the testimony, that the refusal of Bartley to deliver the articles demanded by Williams was qualified in a certain way, the refusal would not be sufficient evidence of a conversion. As it was, the court properly answered the points by leaving it to the jury to find, on all the evidence, whether a demand was made for all the assets or personal property of the firm in Bartley’s possession, and the same was not delivered up by him according to the terms of the agreement, but was retained and sold, or otherwise converted to his use. Finding no error in the record, the judgment is affirmed.