Powell v. Derickson

Opinion by Mr. Justice McCollum, It is not necessary to determine now whether Cyrus Kitchen was a competent witness to matters occurring in the lifetime of D. Y. Derickson, deceased. The court below held that he was not. The plaintiffs were not injured by this ruling because the specific matters proposed to be shown by him were established by admittedly competent testimony and were not disputed. That the certificate of October 10,1893, represented the balance of a deposit made prior to the death of Derickson and while he was a member of the firm, was conceded. For a similar reason it is not necessary to consider the specifications which relate to the admission of evidence tending to show the plaintiffs had knowledge of Derickson’s death before their acceptance of the certificate of October 10, 1893 in lieu of the certificate of December 11, 1890. The plaintiffs admitted that they heard of his death at or about the time of its occurrence, but did not xecall having seen the announcement of it in the papers. We ■do not decide that the rulings referred to were erroneous, but that if they were they were not prejudicial to the plaintiffs’ case. We do not reverse a judgment for harmless error. Did the court err in holding the administrators incompetent to testify they did not know that Derickson was a member of the firm? This was the crucial point in the case. If, with knowledge of his membership they surrendered the certificate of the old firm and accepted the certificate of October 10,1893, in satisfaction of it, they would be, prima facie, liable to the estate they represented for a loss occasioned by the substitution of the latter for the former. They were parties to the suit having an interest, seemingly at least, adverse to the right of the estate represented by the defendants. The cases cited to sustain their claim of competency to testify as above stated are not applicable to their contention. The witnesses allowed to testify in these cases were not parties to the suit and had no apparent [630] interest in the result of it. For six years or more the certificates representing the Gibson deposit, or the balance of it, were in the names of the plaintiffs as administrators of the Gibson estate, and during that time there were important changes in the membership of the firm, affecting the liability of the retiring and incoming partners. The certificates so held by the plaintiffs represented deposits with the partnership issuing them, and the assets of the partnership and the personal liability of its members constituted the depositor’s security. Some of the certificates were payable on presentment duly indorsed, and others upon ten days’ notice. The last certificate held by the plaintiffs was issued on the 10th of October, 1893, the bank closed its doors on the 13th of January, 1894, and on the 20th of that month made an assignment for the benefit of its creditors. No explanation was made by the plaintiffs of their delay in collecting the deposit, or of the financial repute of the partnership during the year preceding the assignment. We think that under the circumstances shown there was no error in the rejection of the offer to prove by the plaintiffs that they did not know that Derickson was at any time a member of the firm known as the Mead-ville Savings Bank. We discover no error in the admission of evidence of transfers of stock, of the introduction of new members, and the part they took in the management of partnership affairs, and of the action of the partnership in reference to the transfers. These transactions were in accord with the articles of association, and had some relevancy to the question whether parties dealing with the partnership had notice of changes in the membership of it. The evidence fully warranted the submission of the case to the jury on the questions whether the plaintiffs knew that Derickson was a member of the partnership, and if so, whether they accepted the certificate of October 10, in full satisfaction of the obligation imposed by the certificate of December 11,1890. Neither a recital nor a summary of the evidence bearing upon these questions is deemed necessary. There was no direct or positive testimony affecting the first question. But the circumstances disclosed by the testimony were sufficient to fairly authorize an inference that the plaintiffs knew Derickson was a member of the partnership. He was a prominent citizen of Meadville, and well known to them; he became a member of [631] the partnership in 1877, and continued to be a member of it until his death in July, 1891. From September, 1887, to October 10, 1893, the plaintiffs, as administrators of Gibson’s estate, had dealings with the partnership, and from the nature of their transactions with it and their position as trustees, it may reasonably be inferred that they were not without knowledge respecting the membership of it. The specifications based on excerpts from the charge, and on the answers to the points submitted by the parties are not sustained. The excerpts and answers considered in connection with the entire charge, furnish no warrant for reversing the judgment. All the specifications of error are overruled. Judgment affirmed.