Soules & Sherman v. Burton

Barrett, J. The question most pressed upon our consideration is that as to the admission of the letter of Sherman to Soule, November 3rd, 1855. Sherman and Burton were both witnesses» The main point in controversy was' whether Burton was a partner in the bnsiness in question. The history of the transactions of the respective parties in the prosecution of that business was shown by the evidence as bearing upon the point in dispute» That letter was an incident in the course of said transactions. The paragraph in qviestion stated, as a fact, that Burton had [656] said a certain tiling to Sherman. The letter itself, as an independent instrument of evidence, was not competent to prove that fact. The fact, however, was properly proveable. It was competent for Sherman to swear that Burton told him what was contained in that paragraph. He did so swear. Burton denied it. The point then was, which was correct? It was at, and upon this point alone, that the letter comes in question. It was a question of credibility as between the two, as depending on the correctness of their recollection, or honesty. And a matter of this kind is always to be solved upon the former ground, when it can be, rather than upon the latter — upon the ground of an honest mistake or failure of memory, rather than upon the ground that either) party is guilty of perjury. Was it cbmpetent for the party to refer to, and show some collateral, or incidental act in relation to or connected with, or consequent upon the controverted fact, for the purpose of evincing the correctness of his recollection, and his testimony in respect thereto ? We understand it to be of every day’s occurrence in the trial of cases, when questions of this kind arise, involving the correctness of recollection, and particularly as to what was said upon a given occasion, for witnesses to state that they made and have a memorandum, and to produce it, and state the time, occasion, and circumstances under which it was made, and for the memorandum, with the oral testimony connected with the subject, to go to the jury, or other trier of the case ; and this we understand to be fully warranted by a great number of adjudged cases, which may be found by reference to 1 Greel. Ev. § 436 and seq. and notes ; and to 1 Phil. Ev. O. & H. Notes, n. 210 and 273 ; 4 ib. n. 373. Though the manner in-which this question is presented by the report seems somewhat calculated to beget the impression that the letter itself was received as the primary and superior evidence, still we are satisfied that it was in fact received, and was operative only for the legitimate purpose of bearing upon the only question upon which it was of any importance, viz: whether Burton, in fact, said to Sherman what Sherman testified [657] he did. For that fact was alone of importance, and operative upon the question whether there was a partnership or not. If Sherman had testified to the fact, and had not been contradicted by Burton or otherwise, it would have had its full force, and just as much so, even though it had not been put in writing. Its being put in writing gave it no additional force. The writing, in connexion with the testimony of Sherman, bears only on the question whether Burton said as Sherman testified. When the writing is produced, it becomes the subject of examination and consideration, as to its character as a memorandum of what was said, having reference to its contents, the time when it was made, its relation to occasion and circumstances ; and if, upon the whole, it is found to have been made at such a time, and in such a manner, and upon such occasion, and under such circumstances, as concur and coincide with the main fact, it has a legitimate tendency to assure the correctness of the recollection of the party as to the happening of the main fact. - We understand that it was precisely in this view, that the referees mean to be understood in saying that, independent'of the letter, they did not find that Sherman was authorized to write the letter — that they did not find from the proof without the letter that Sherman was authorized to write it, — which expression we translate thus : that independently of the memorandum which the letter constitutes, standing upon the oral testimony of Sherman, unaided by the memorandum,'as against the testimony of Burton, they did not find that Burton said to Sherman, what Sherman testified he did, but upon that oral testimony in connexion with that memorandum, they did find that Burton did so say. This being so, of course, it could be of no importance whether they considered the written language of the letter, or the same language embodied in one real expression of the witness, as evidence tending to prove a co-partnership of -the parties. The letter was legitimately before them as a memorandum, bearing on the question whether Burton in fact said what is stated in the letter. When they had found that fact, the con [658] sideration and effect of it were not subject to be affected by the manner in which it had been proved. As we are satisfiedJJiat the letter was properly received, under the views above presented, we refrain from any discussion of questions made as to this being a general rule of reference, and as to the consequences of the referees erring in matter of law, when they intended to try and decide the case according to the rules of law. It is plain from the report that the referees found that the partnership in question consisted of Burton, as one partner, and the firm of Soule and Sherman, as the other, and that, as between said partners, the results of the business was to be shared equally. The language, in setting forth the arrangement which constituted said partnership, is entirely consistent with this view ; and the summing up of the loss,, and the division made of it in finding the balance for which Burton is to be held liable, is conclusive as to what the referees mean in their report on this subject. It is claimed that the item of money .advanced to the Hitch-cocks should not be embraced in this accounting. Though that money was advanced without Burton’s knowledge, still it was so advanced in good faith in the prosecution of the business of the partnership. The fact very soon came to his knowledge, when, instead of disclaiming and repudiating it, his conduct in respect to it was a practical adoption and approval of it. After having knowingly taken his chances of benefit from the transaction, and as a partner personally participated in a specific appropriation of it for a certain lot of butter, and also in an endeavour to get the balance of the money back after it was determined not to take the butter for which that money was to go in payment, it is quite too late to fall back upon the fact that the original advance was made without his knowledge, consent, or direction. We are satisfied that the defendant ought to be chargeable with the largest sum found by the referees. The judgment of the county court is, therefore, affirmed.