Welsh v. Speakman

The opinion of the Court was delivered by Rogers, J. This is an action of assumpsit for goods sold and delivered to William Speakman and William Speakman, Jun., trading under the firm of William Speakman & Son. The declaration sets out the cause of action, avers the insolvency of William Speakman, Jun., and the death of William Speakman, Sen. The suit is brought to recover the amount due from the executors of William Speakman, Sen. The defendants pleaded the general issue, and on the trial the cause turned on two points; first, the insolvency of William Speakman, Jun., and secondly, the partnership of William Speakman & Son. It was admitted that the goods were sold and delivered to William Speakman, Jun., and the principal point in controversy was the alleged partnership. The admission of one of the defendants sued as partner, that he and others composed' the firm, has been ruled to be evidence. The existence of a partnership may be proved by the separate admissions of all who are sued. The law does not require direct and positive proof for this purpose; for it may be proved by the acts, declarations and conduct of the parties, by the act of one, the declarations of another, and the acknowledgment or conduct (where the firm consists of three persons) of the third. It cannot, however, be proved by the act of one only, but the whole testimony taken together may be and frequently is adjudged competent evidence of partnership. It is sometimes said that the admission of one is not evidence against the others, by which is meant that where the plaintiff fails in his proof against any one member of the alleged firm, he cannot recover, however strong and overwhelming may be the evidence arising from the admissions or conduct of the other defendants who are sued; for in order to sustain his case, he must connect each and every one by their own admissions or acknowledgments. But to effect this, the plaintiff has a right to prove one thing at a time, to add fact to fact, from which the jury, who must judge from the whole case, may infer the existence of the partnership. 4 Whart. 367; 11 Serg. & Rawle 372; 2 Whart. 553, 561; 1 Watts & Serg. 338. And this course is permitted, because where there are no articles of copartnership, or they are suppressed, and no persons present at the contract, it would be impossible to prove a partnership, and thus the justice of the case would in many cases be perverted. To support his case, the plaintiff in the first place proved certain confessions of the testator. Evidence was given that various packages of goods at different times were sent to the store at Edg [261] mont, where the business of the firm was transacted, marked William Speakman & Son; that the testator was frequently at the store, and in a situation where it is more than probable he may have seen the goods so marked. Other evidence was also given which together raise a strong inference that William Speakman, Sen. was connected in business with his son. After these preliminary steps, the plaintiffs offer the evidence contained in the 2d, 3d, 5th, 7th, 8th and 9th bills, which in effect was an offer to show by the admissions of William Speakman, Jun. that he also was a member of the firm; and upon the principles above admitted, we think this evidence clearly admissible. Had the suit been brought against both, it would hardly admit of argument. The testimony rejected by the court shows that the bills of goods furnished for the store at Edgmont were rendered in the name of William Speakman & Son. It was, therefore, pregnant evidence against William Speakman, Jun., to whom the bills were sent; for the inference is irresistible that it was done with his consent and by his orders; for unless there was a connection between them in business, the error, it is reasonable to suppose, would have been immediately corrected. As then it would have been evidence if the suit had been brought against both, is there anything in the manner the suit is instituted which prevents its being received ? The suit is brought against the executors of the solvent partner to prevent a fáilure of justice. By the death of the father the action survives against the son, who at law (being vested with the partnership funds) is alone liable; but he having become insolvent, it would be fruitless to proceed against him; hence, in this State, where we have no Court of Chancery, we aver the insolvency of the surviving partner, and proceed against the executors of the deceased partner. Now conceding that proof alone against the deceased partner would be all that is required (a point by no means clear), yet why should the plaintiff be prevented from strengthening his case by testimony of the admissions of the surviving partner! It certainly adds force to the allegation of the existence of the partnership, a principal and material fact that it is indispensable the plaintiff should establish to sustain his action. We are therefore of the opinion the court erred in ruling out the evidence contained in the 2d, 3d, 5th, 7th, 8th and 9th bills. We also think, for the same reason, the court should have received the plaintiff’s offer of the day-book and ledger. Of this the court were afterwards convinced, and, in a subsequent stage of the cause, said they might be given in evidence; but this offer the counsel for the plaintiff declined, stating that he had designed to give the books in evidence in connection with some explanatory testimony not now at hand, the witness having been discharged. On this state of facts two courses were open to the plaintiff— either to request that a juror should be withdrawn, or that the cause should be postponed, so as to give him an opportunity to [262] send for his witness. If either course had been pursued, and declined by the court, there would be some ground of complaint; but where such a request has been omitted, we should be unwilling to reverse a judgment for a mistake which the court was willing and offered to correct. He takes the chance of a verdict, and, having failed, he cannot now assign it as error. The objections to the evidence in the 11th and 12th bills, which go to the form rather than the substance of the testimony, can be so easily obviated on another trial, that it requires no comment. It involves no principle which can be useful in another trial. It is competent for the defendants to show the course or manner of doing business at the Edgmont store before any controversy arose; as, for example, that the sign was in the name of William Speakman, Jun.; that the books were kept in his name; that the bills were so made out, and that suits were before a justice in his name. And, as I understand it, this was the design of the testimony contained in the 14th and 15th bills. The evidence, we think, was properly received. The evidence, also, in the 16th bill was properly admitted on the issue of the insolvency of William Speakman, Jun. Judgment reversed, and a venire de novo awarded.