Johnston v. Warden

The opinion of the Court was delivered by Rogers, J. This was an action of assumpsit to recover the value of ploughs, &c. furnished, as plaintiffs alleged, to the deféndants, Johnston and Rhodes. The defence was that the goods were furnished to Rhodes alone, and that Johnston was not a partner. The evidence was objected to on the ground that, although the declaration or admission of each member of a firm that he is a partner is evidence to charge himself, it is no evidence of the fact against any other party. This is conceded, and I do not perceive how the evidence contravenes that principle, for the evidence was not offered to charge Johnston, but Rhodes. If the plaintiff rested on the declarations or admissions of Rhodes, he must have failed in the action, for clearly, although sufficient to charge him,- they could not affect any other person. It is no answer to evidence that it does not prove the plaintiff’s whole case: but if it is a link in the chain -of evidence afterwards to be given, it is admissible. The plaintiff, in addition to Rhodes’s declaration, which merely showed that he was a partner, also proved the acts and declarations of Johnston that he was a partner. After proving the admission of Rhodes, the witness states— defendants came together on market day to the foundry-of plaintiffs, and talked with witness’s brother, one of the plaintiffs. They said they -wanted extra shares for each plough, and wanted them soon, as they were in a hurry to get down the river as the water was falling. Johnston used this language. Johnston also suggested alterations in the share to make it -fit better. This conversation occurred whilst the work was going-on. The witness saw Johnston at the foundry twice. At the second conversation in the foundry, Rhodes was with him. Johnston did not say he was a partner with Rhodes, but. said, we want ploughs so as to get down the river before-the water falls. It was also in proof that Johnston accompanied Rhodes down the river. Now although this testimony did not conclusively prove that Johnston [105] was a partner, yet it was evidence which the court were correct in submitting to the jury, that they might pass upon it. Where an action is brought against several upon a contract, on which they are liable as partners, the evidence usually given to establish the partnership, consists in showing that they have acted as partners in the particular business. In such a case the plaintiff is not bound down to the same strictness of proof which is required for partners when they appear as plaintiffs. There no reason exists for relaxing the rules of evidence, for, by the very act of suing jointly, they assume that they have a joint title to sue, and they are necessarily cognizant of all the means by which the fact is capable of being proved: but where partners are sued as defendants, the plaintiff may not be able to ascertain the real connexion between them ; it is sufficient for him to show that they have acted as partners, and that by their habit and course of dealing, conduct, and declarations, they have induced those with whom they have dealt to consider them as partners. 3 Stark. Ev. 1070; Gow on Partn. 208. In the case of a dormant partnership, it is difficult to establish the partnership in any way, excépt by the declarations of each of the alleged partners, or the declarations of one and the acts of the other, or by the acts of each of them. I take it for granted that, in conformity to the principle of law, the court instructed the jury, that although the declaration or admission of each of the alleged partners, members of the firm, that he was a partner, was evidence to charge himself, it was no evidence of the fact against the other party. The plaintiff having given some evidence that a partnership existed, had a right to give his book of original entries in evidence, in which the charge for the castings is made against Johnston and Rhodes. It is given as evidence of debt, bul not as proof of parlnership. The defendants next complain of the rejection of the.evidence contained in the third bill of exceptions, that the witness heard both Johnston and Rhodes say that Rhodes was indebted to Johnston at the time the castings were furnished, and offered also the insolvent petition of Rhodes, which showed that he had returned Johnston a creditor, to rebut the declarations of Rhodes as proved by plaintiffs, and as evidence that Rhodes had given ploughs to Johnston to pay said debt. It is a principle of law that the declaration or admission of each individual member of a firm that he is a partner, is conclusive evidence to charge himself in that character. If a person has represented himself to be a partner, and has been trusted as such,' he is bound by that representation, and it is no defence to him to show that he was not in fact a partner. Gow on Partn. 208, 209, and the authorities there cited. Now here, from the declarations, admissions and acts of both parties, when together, and separately, the plaintiffs were induced to believe, and did believe, that they were partners, and charged them as such with the articles furnished. In such a case we have a right to expect something more than an offer to [106] prove their own acts and declarations to discharge themselves from the consequences of their own conduct, and these acts and declarations made after their liability attaches. If a debt did exist between them, and there was an explanation of the conduct of Johnston, the ordinary proof should have been given of the indebtedness. We think the court were right in overruling the testimony. The plaintiff further alleges that there is error in the court in their instruction to the jury : “That if A contracts with B to deliver articles at a specified period, and if in the intermediate time B and C enter into partnership, as upon such a contract it is to be presumed that payment is to accompany delivery, if credit is given at the time of delivery, it must be presumed to be done upon the credit of the partners; and this whether the existence of the partnership was known to the plaintiff who gave the credit or not. If the existence of the partnership was known at the time, no doubt could be raised; but if a credit be given when there is a secret partner, the credit is supposed to be given as well to him as to those associated with him, upon the ground that he is entitled to the profits, so he in equity should be responsible for the loss in the present case.” In this opinion the court are supported by the cases of Saville v. Robertson et al., 4 T. R. 720, and Scottin v. Stanley et al., 1 Dallas 129. In the case at bar, if a partnership did exist, it was known to the plaintiffs, who, on the delivery of the articles, charged the partners in their books with the amount. It shows that the credit was given to both partners. Judgment affirmed.