Widdifield v. Widdifield

Tilghman C. J. In this case an exception was taken to two opinions of the Court of Common Pleas given in the course of the trial. The action was on a promissory note, signed by John Widdijield and company; and the question before the jury was, whether John Widdijeld, William Turn-bull and Anthony Morris were joint partners under the firm of John Widdijeld and company. The plaintiff produced George Widdijeld as a witness, who swore that “ the three defen- “ dants had an agreement drawn up of partnership between M them; but whether written or printed he did not know, as “ he had not seen it; he knew there was such an agreement, “ because William Turnbull and John Widdijeld told him “ so.” After this evidence was given, the defendant’s counsel insisted, that as the plaintiff’s witness had proved, that if there was a partnership it was contracted by a written instrument, no parol proof could be received of the partnership, but the instrument itself should be produced to the jury, or if in possession of the defendants, notice should have been given to them to produce it; they therefore prayed that the defendant might be nonsuited. But the court refused to non-suit him, and gave their reasons. It is unnecessary to give any opinion concerning the reasons assigned by the court, because whether they are good or bad, I think they were right in refusing the nonsuit. This court have declared their opinion in the case of Girard v. Gettig (b), that the plaintiff’s counsel cannot be nonsuited against their consent, but may insist on taking the verdict. If it is wished to have the opinion [249] of the Court of Common Pleas examined on a writ of error, it will be necessary, instead of asking for a nonsuit, to state .. . , .... . , some specific point, and pray their opinion on it to be given in charge to the jury. In the case before us, it would have been altogether improper to nonsuit the plaintiff, because he might have other evidence to offer, independent of the written articles of partnership; and indeed from the subsequent proceedings, it appears that he had. The record goes on to state, that “ after the court had refused to order a nonsuit, the “ plaintiff produced a witness to prove that the partnership “ existed.” The defendant’s counsel objected to the admission of this testimony; but the court declared that it should be received. The reason relied on by the defendant’s counsel, for rejecting the testimony is, that parol evidence is inadmissible to prove the contents of a written instrument. But granting this principle to be in general trufe, it by no means follows that the testimony offered should have been rejected. It does not appear that there was any intention to give evidence of the contents of the articles of partnership. A partnership may be proved by the declarations and actions of the parties. Suppose the articles had been produced, and contained an agreement for a special partnership. Will it be said, that the partners might not afterwards form a general partnership by parol? Might not evidence be given of their confession of a general partnership, subsequent to the articles, or of their acting in such a manner as was inconsistent with any thing but a general partnership? How are the world to know any thing about instruments of writing made in secret between persons in trade? I believe it the general practice to have written articles of partnership; yet, amongst the numerous actions brought against partners, I have seldom known the partnership proved by production of the writing. In what manner the witness of the plaintiff proved the partnership in this case, does not appear. If the defendant’s counsel thought it material, they might have specified it in the bill of exceptions. We must take the record as we find it.' It is not said there that the testimony went to prove the contents of any writing, and we cannot presume that it did. In order to reverse the judgment it must appear with certainty, that the opinion .of the court, was wrong. I cannot [250] say that it does appear so, by this bill of exceptions. I am therefore of opinion that the judgment should be affirmed. Yeates J. and Brackenridge J. concurred. Judgment affirmed.