Smith v. Cisson

Hallett, 0. J. The appellants seek to reverse this judgment because the court below refused to give an instruction asked by them, and because the evidence is not sufficient to support the verdict. As to the first point, the appellants did not except to the ruling of the court in refusing to give the jury the instruction asked by them at the time such ruling was made, and, therefore, they cannot be heard. Armstrong v. Mock, 17 Ill. 166. The witnesses who testified upon the trial below related the facts touching the renting of a blacksmith shop and other business transactions between Mr. Smith and Mr. Cisson, without giving the names of the parties more fully, and it is urged that it does not appear which one of the appellants was intended to be named by the witnesses, or indeed whether the witnesses intended to name either of the appellants. We cannot doubt that the witnesses referred to one of the appellants when they spoke of Mr. Smith. Upon the stand witnesses use the language of ordinary conversation, and to require them to adopt a more perspicuous diction is neither practicable nor desirable. It is hard to believe that a witness may be produced in open court, and that he may there, in the presence of the parties, plaintiff and defendant, detail the circumstances of a business transaction between the plaintiff and a person of the surname of the defendant, without disclosing the fact that the defendant in the suit is not the person referred to by the witness, if such fact exists. Oftentimes the names of parties are used by witnesses without giving the full name, but in such way as to leave no doubt in the mind of the hearer as to the person designated by the witness. If there is doubt as to the identity of a person named by a witness, it is easily solved upon cross-examination, and, if the party in whose favor the doubt will operate fails to apply the test, there is strong ground for believing that he does not desire to dissipate the doubt. We think that the jury, in this cause, were at liberty to determine, as they did determine, that the witnesses, when speaking of Mr. Smith, referred to one of the [32] appellants. A more difficult question is presented concerning the joint liability of the appellants to the appellee in this action. The testimony refers to but one of the appellants, and unless the act of this one is binding upon the other, the verdict cannot be sustained. It must be borne in mind that this action was originally commenced before a justice of the peace, and there are no written pleadings from which we may learn the character of the suit. For aught that appears the appellants were charged as partners, in which case the joint liability would be established, prima facie, unless denied by plea in abatement, and it is not claimed that such plea was interposed. Warren v. Chambers et al., 12 Ill. 124. Upon this point the witnesses give no light, but there is, in the bill of exceptions, an account and receipts which it is said the appellants presented and relied upon in the trial of the cause. In the account the appellants style themselves “Smith Bro.,” and they charge the appellee an item of rent for a shop which appears to have been the blacksmith shop mentioned by the appellee’s witnesses. The receipt also appears to have been given by the appellee to the appellants, to acknowledge payment of some of the items for which this suit was brought, and therein the appellants are styled “ P. Smith & Co.” One of the appellants, Peter J. Smith, having made the preliminary affidavit required by statute, testified in the cause respecting some of the items in the account. Now it appears from these papers that the appellants were seeking to establish a demand against the appellee in a copartnership name, and also to establish the payment by them as copartners of a portion of the appellee’s demand, and we think in this way they admitted, not only that they were charged in the suit as copartners, but also that they were in fact copartners in business. Macfarland et al. v. Lewis et al., 2 Scam. 344 ; Rymer v. Cook, cited in 22 Eng. Com. Law, 479, in note. The copartnership being thus established, the contract of one was obligatory upon both of the appellants, and the [33] joint liability is sufficiently shown ; as to the damages we see that the evidence is conflicting, and we think that another verdict might well have been given by the jury, but as there is evidence upon which this verdict may stand, we cannot disturb it. The judgment of the district court is affirmed, with costs. Affirmed.