McNeill's Ex'rs v. Reynolds

COLLIER, C. J. Although the record does not show upon what plea the issue was submitted to the jury, it is admitted, that the issue was so framed as to throw upon the plaintiff the onus of proving that the note declared on was executed under such circumstances as to impose upon the defendants testator, a legal obligation to pay it. The question in respect to the evidence objected to, is not whether it was competent to establish the defendant’s liability, but whether its tendency was to produce such a result; for if it was pertinent, and 'alone, or in connection with other testimony, could have that effect, it was clearly admissible. In order to charge persons or partners, the utmost strictness of proof of the partnership is not required. It is sufficient 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.] An account [316] book containing entries made by two persons sued as partners, has been held admissible, as evidenee of partnership. [Champion v. Tilley, 3 Day’s Rep. 306.] The account exhibited with the deposition, was one of which the witness had many placed in his hands for collection. If the testator had no agency in making out these accounts, and said or did nothing in regard to them, to indicate that they were due to him as a partner with Léeper, of course they could prove nothing against him. But if he controlled the collection, received the benefit of the proceeds, or did any other act of an equivalent import, either of these, in connection with the form of the accounts, would be most satisfactory evidence. If the paper attached to the deposition was evidence, much more so was the testimony in respect to the manner in which the books were kept, and boxes of merchandize marked. It must be observed, that the court did not admit the evidence as sufficient in itself; but it is very clearly intimated, that if it was not supported by other facts and circumstances, it did not authorize a verdict in favor of the plaintiff. Where testimony pertinent to the issue, and unobjectionable in itself is offered, it should be permitted to go to the jury, and the party who supposes he may be prejudiced by it, should pray a charge as to its legal effect. This point has been so often ruled by us, that it cannot be necessary to cite ■the decisions. The first charge given to the jury was a mere reiteration of the legal principle involved in the admission of the evidence. The first part of the second charge affirms a familiar principle, quite as favorably for the defendants as they could desire, and the latter part is clearly consistent with what preceded it. It merely asserts, that although the note in question may be founded upon a transaction, not within the scope of the partnership dealing, yet if the transaction came to the testator’s knowledge, and was assented to by him, then the note would be binding upon defendants. There can be no available objection to the charge to the jury; and it follows that the judgment of the Circuit Court is affirmed!