Wait v. Brewster

Aldis, J. This is an action against William Brewster and Cyrus Brewster, as partners in Montreal under the firm of W. & C. Brewster. There is a return of non est as to William. Cyrus defends upon the ground that he was not a partner when the contract here sued upon was made with the plaintiff, but that William Brewster carried on the business alone, though under the name of W. & C. Brewster. I. A question has arisen as to the admissibility of a deposition taken by the plaintiff. It was taken with notice; the defendant appeared and cross-examined the witness; the plaintiff had the deposition opened and filed by the clerk, and left in his office; but it was subsequently taken by the plaintiff, who refused on the trial to produce it, though requested by the defendant. The court held that the plaintiff was not bound to produce it. — 525 — When depositions were taken exparte under the old law, they were required to be filed thirty days before court in the clerk’s office, but that provision of the statute was repealed in 1854, when the act was passed requiring notice in all cases of taking depositions. When the deposition in this case was taken and filed there was no law requiring it to be filed. The act of the plaintiff in filing it was mere supererogation. The case stands as if it had not been filed. In regard to depositions taken with notice, though the practice inay not have been universal, and perhaps not uniform, we think the practice has been very general in the State, and of long standing, that the party taking the deposition may or may not use it as he sees fit, and can not be required by the defendant to produce it. It is with his depositions as his witnesses, he may use them or not, as he may be advised. If compellable to use them, he might be placed in the situation o£„ presenting testimony which was adverse to him, and whidji’he . might believe to be untrue, and perhaps could disprove. ITlie’’'' defendant, on the other hand, has it always in his power tojtftkpf, the deposition if he wishes to use it. Viewed as a questíén^oU right or of convenience, we think the rule should not be infringed. II. The main question is as to the defendant’s liability's as a partner. These are the facts. The plaintiff resided in Highgatej Vermont; the defendant in Montreal. The plaintiff was a manfacturer of straw cutters. He received a letter signed W. & C. Brewster, enclosing a business card with.the name of the firm, “W. & C. Brewster,” on it. The letter stated that they wished to buy straw cutters of his manufacture, and requested him to come to Montreal and see them.' He went, found the sign over their door “ W. & C. Brewster,” found both William and Cyrus Brewster in the store, negotiated with both about the contract, and closed it in their presence. The defendant, Cyrus, drew up the contract, and it was signed “ W. & C. Brewster” in the presence of both of them. No intimation was given to the plaintiff that Cyrus was not a partner. The plaintiff believed that he was a partner. But in fact he was not a partner as between himself and William, although his name was kept on the sign, and used in the transactions of the firm; and it was generally known in Montreal that he was not a partner. He had formerly been — 526 — a partner in the firm, but about four years previous to the making of this contract the partnership had been dissolved ; and notices of the dissolution and that Cyrus had retired, and that "William would carry on the business under the name of W. & C. Brewster, but on his sole account, had been published in the Montreal Gazette, and were notorious in Montreal; but the plaintiff had no knowledge of them. The defendant, by continuing to be engaged in the business of the firm after its dissolution, and by allowing his name to be kept upon the sign and used in the transactions of the apparent firm, held himself out to the world as a partner. He came within the definition of an ostensible partner, “ one whose name appears to the world as that of a partner.” He thereby took upon himself the consequences of holding out such appearances; and one consequence was, that if a person, ignorant of the fact that he was not a partner, should be misled by the appearances to believe that he was, and to deal with him as such, he would as to such person be a partner. 'The plaintiff was led to believe from the acts of the defendant, that he was a partner. The name of the firm, the negotiation and signing of the contract said to the plaintiff that the defendant was one of the firm. There was nothing to put the plaintiff on his guard, to lead him to inquiry. The defendant knew that the plaintiff' might be misled. It was his duty to see to it that the plaintiff had notice of the real facts, and that he should not be misled by the appearances. The defendant now claims it was sufficient notice to all dealing with the apparent firm, that he Was not a partner in it, that that fact had four years before been published in the Gazette, and was generally known in Montreal. This positiqn is not tenable, for his name appeared as one of the firm, and he continued in its business as before. It was not enough that the fact that he was not 'a partner was generally known. Many might be ignorant of what was generally known, and this without any fault on their part, and without anything to lead them to inquire about the subject. But no one dealing with the firm could be ignorant of the fact that the defendant appeared to be a partner. On the contrary, every one must know that fact, and would have a right to rely on — 527 — it. Hence the' mere probable presumptive notice ought not to counterbalance the actual knowledge which every one must have, and the natural conclusion which every one would draw and would rely upon ; 24 Vt. 278; 11 Vt. 75; 17 Pick. 361. The court below went no further than this, that a retiring partner who gives notice by publication in a newspaper that he has ceased to be a partner, but who after that allows his name to appear in the firm as a partner, and who continues in its employment, is liable as a partner to one who deals with the firm and is misled by the appearances, and has no notice that he is not a partner, although that fact is generally known at the place where the contract is made. In this there was no error. The cases cited by the defendant are all of the class where the retiring partner had not allowed his name to be used, or had not interfered with the business of the firm after the dissolution. Such is 2 Camp. 617. But where the retiring partner suffers his name to appear as one of the firm, he must at least be held liable to those who are misled by it; Williams et al. v. Keats et al., 2 Stark. 290; Dolman v. Orchard et als., 12 E. C. L. 47; Clapp v. Rogers, 12 N. Y. 283; 10 B. & C. 140; 1 Smith’s Lead. Cases 981; Collyer on Part. § 535; Story on Part. § 160; Amidown & Co v. Osgood & Minard, 24 Vt. 278. IH. Another question in the case is, did the note given by William Brewster in the name of W. & C. Brewster upon the settlement of the contract, operate as a payment of the sum due on the contract. Ordinarily, a note given for a previous debt is prima facie payment of such debt. The law supposes that the parties intended to extinguish the old debt and leave no right of action except upon the note. Such has been the settled law of this State since the decision in Hutchinson v. Olcott, 4 Vt. 549; see 14 Vt. 83; 13 Vt. 452; 16 Vt. 30; 29 Vt. 42; 26 Vt. 303. But if the parties stipulate that the note shall not have that operation, then their agreement governs, and the antecedent cause of action still subsists. Other limitations of the general doctrine “will appear from an examination of the authorities above cited. — 528 — Thus it has been held that when the party takes' the note under a misapprehension as to facts, he supposing that other parties are bound by it who are not, then the intention of treating it as payment is rebutted, and the party may sue upon the original debt. In this case the note on its face purported to bind both Cyrus and William Brewster. Under the charge, the jury must have found that the plaintiff took it supposing both were liable on it, and without any intention of discharging Gyrus, and with the understanding that the note was not to extinguish the original claim unless it was paid. It seems difficult to construe this language of the bill of exceptions as not importing a mutual understanding to that effect, especially when taken in connection with the previous statement, “that the plaintiff’s evidence tended to show that the note was not to cancel his claim, and that the plaintiff took the note understanding that Cyrus as well as William was liable on it.” If “ the note was not to cancel the claim,” it would seem to be the fair construction to say it ihvas so because the parties so agreed. But however that may be, we are clear that the finding of the jury has established, that if Cyrus was not bound by the note, then the plaintiff took it under a misapapprehension which should relieve him from the implied presumption of payment and remit him to the original contract. And such must be the construction of the charge of the court if it be not construed as intending a mutual agreement and understanding of the parties. Upon either construction the note does not operate as payment, and the plaintiff could sue on the original debt, and therefore the plaintiff can recover upon the common counts. He can recover on them, for he has to prove in any event, that the original debt was not paid except by this note. This renders it unnecessary for us to decide whether the charge of the court was correct as to the effect which notice to the plaintiff, that Cyrus was not partner, had .upon his liability upon the note. TV. It is objected by the defendant, that the court erred in requiring the witnesses to state what knowledge they had that the fact of dissolution and the manner in which the business was carried on, was known to the inhabitants and business men of Montreal, instead of stating in the first instance, and generally, — 529 — that the dissolution was matter of general nptoriety, and leaving it for the cross-examination to show their actual knowledge and means of knowledge, This is a matter of form as to the manner of examining a witness. It does not exclude the testimony, it only presents it at first as it would be left by the cross-examination. All the witnesses’ knowledge and means of knowledge are finally elicited. The practice in this matter as to the proper form of examining witnesses as to matters of reputation has not been uniform. As the whole substance of the testimony is in the end fully brought out by either mode, we do not think error pan be predicated of either. The Sykes contract was offered to show a date which the plain? tiff admitted the defendant’s witnesses had accurately stated. Under such circumstances it was properly excluded, It would not be conclusive evidence of the accuracy of its own date as between persons not parties to it. As to the statute of Ganada, we think it was merely an act of registration not affecting the rights of the parties in this case, The judgment of. the county court is affirmed.