Bird v. Fake

Irvin, J. This cause which was tried and decided in the district court of Milwaukee came up on error, as set forth and complained of, in exceptions taken to the sev — 295 — eral decisions and directions of the court to the jury, both in its general charge and special instructions asked for. When instructions to the jury are asked for upon a particular point of law as connected with the case generally, or upon the law connected with a particular point in the evidence, and exceptions to the instructions given are taken, the inquiry of the appellate or court of error is generally confined to the particular and more circumscribed matter thus presented; but when the exception is taken to matter of the general charge of the court to the jury, as well as particular instructions asked , for, the inquiry in the appellate court necessarily becomes more extended, and sometimes apparently diffuse, as the general charge rests upon the views taken of the whole case as presented. The first exception taken in the court below is, in this court abandoned, so far as the writ is concerned, and will not therefore, be considered. By a provision of the statute of the Territory, when a creditor sues out a process of attachment against his debtor, any other creditor of said defendant may, at or before the second term of the court after the return of said process served, file his declaration, and proceed thereinto judgment as in other cases. This appears to be a case of that kind, and in which the defendants in error seek to recover of the plaintiff in error the amount of a bill of particulars through the medium of a declaration in assumpsit, to which the defendant pleaded the general issue. In the progress of the trial, it appeared that AMre & Cotton were the keepers of a hotel at Madison, called the American Hotel, and as such keepers sold and furnished to Augustus A. Bird, the items mentioned in said bill of particulars, among which were charges for spirituous liquors, which account of items commenced on the 30th of November, 1838, and terminated on the 30th of August, 1839. Up to the 4th of July, 1839, the laws of Michigan were in force in this Territory, when they ceased by repeal. In this case, Bird, the plaintiff in error, relied for a part — 296 — of Ms defense on the sixth and seventh sections of “An act to regulate taverns.” Laws of Michigan, p. 126, Revision of 1838. As farther defense in the coart below, Bird, the plaintiff in error, introduced an agreement purporting to be made and entered into by James Morrison, of the first part, and L. II. Cotton and Henry Fake, of the second part, wMch was signed and sealed by L. 11. Cotton and Henry Fake, and James Morrison by A. A. Bird, by wMch the American Hotel was leased to Cotton and Fake, and wMch regulated and disposed of the profits arising from said hotel, between the said Morrison, the lessor, and the said Cotton & Fake, the lessees. This was introduced for the purpose, 1st, of showing that Morrison was a partner in the keeping of said hotel, and should have been joined in the action ; and, 2d, that his acts, as such partner, bound the firm keeping the American Hotel. The 6th section of the law of MicMgan above referred to, is as follows: “If any tavern keeper shall trust any person other than travelers, above the sum of one dollar and twenty-five cents,, for any sort of strong or spirituous liquors, or tavern expenses, he shall lose every such debt, and be incapable of suing for the same, or any part thereof, and if any such tavern keeper shall sue therefor, the person may plead tMs act in bar, or give it in evidence under the general issue, and if the plaintiff shall become nonsuited, or a judgment shall be given for the defendant, every such plaintiff shall pay double costs.” The 7th section makes void all securities taken upon such trusting, and among other tMngs makes an exception in favor of the tavern keeper in the case of lodgers and travelers. The agreement referred to is as follows: “An agreement made and entered into at Madison, tMs 21st day of November, A. D. 1838, between James Morrison, of the county of Iowa and Territory of Wisconsin, party of the first part, and L. H. Cotton and Henry Fake, of the town of Madison, county of Dane, and Territory aforesaid, party of the second part, witnesseth: That the said Mor — 297 — rison, party of the first part, for himself, his heirs and assigns, doth hereby agree to furnish the house now known as the American Hotel, in Madison, in a suitable manner for the accommodation of guests, and will also furnish one laboring man to cut firewood for said house, and doth hereby lease the same to the above-named party of the second part, they complyingwith the following conditions, to wit: The said party of the second part, for themselves, their heirs and assigns, agree to take the above-mentioned house on a lease of one year from the date of this article, after having been furnished as above described, and will furnish all necessary help and keep the same in as good a maimer as possible, and at the expiration of each three months during the term of said lease, will divide the net profits that may accrue equally with the said party of the first part, and return the furniture in as good order as when taken, excepting the natural wear and tear thereof; and the said party of the second part furthermore agrees to pay one-half of whatever the cost may be of insuring the furniture against loss and damage by fire, the same to be insured as soon as possible. And it is further understood, that each party is to be at half the expense of furnishing provisions, liquors, and all necessary eatables for said house.” It further appears from the testimony returned with the exceptions taken in the cause, that some time in the summer of 1839, Fake and Morrison attempted a settlement of the matters arising out of the keeping of the said hotel, when Fake proposed that Morrison should take the account charged against Bird, which was then declined; nor does it appear that the parties, Fake and Morrison, ever had another interview about it. Morrison, in his deposition taken herein, says: “I afterward saw Mr. Bird, who said (in allusion to the account against him), it was correct, and I agreed to receive it as a payment from Mr. Fake, as above stated,” but with whom he agreed does not appear. Thus stand the. prominent matters in this case, to the understanding of which, a state298 meat is made necessary from the desultory and unsatisfactory manner in which the exceptions were taken below, exceptions in the most part taken to the general charge of the court to the jury, which we are 'bound to presume was given from a full view of the whole case. The errors are assigned merely by reference to the exceptions in their numerical order. The second exception is to this charge of the court: “The statute of Michigan, forbidding the collection of tavern bills, is a statute affecting the remedy, and being repealed, does not operate against the plaintiff’s recovery.” In the examination of that statute, which has already been recited, the prohibitions therein contained are not directed against the act of selling, but of collecting. The right to sell to any extent, the articles therein mentioned, cannot be questioned, so that it be done for cash, and not trusted, for it says, “ if any tavern keeper shall trust any person,” etc. The right to sell, therefore, cannot be doubted, and the only prohibition being upon the collection, it becomes clearly a matter that relates to the remedy, and the statute being since repealed, and before the commencement of this suit, the inhibition upon the remedy was removed with the repeal. At the time of the repeal spoken of, it was done under a regular revision of the laws, and was accompanied by this general provision which is found in the fourth section of the act, page 407 of the statutes of Wisconsin, and is in these words: “The repeal of any statutory provision by this act shall not affect any act done or right accrued or established, or any proceeding, suit or prosecution had or commenced previous to the time when such repeal shall take effect,” etc. The prohibition upon the remedy was not such a right accrued or established, as was contemplated by the act, nor was it a vested right. The court did not, therefore, err in the instruction given. The third instruction excepted to, is this : “It probably would not have, been improper to include the name of James Morrison, but it was not necessary, and the action — 299 — was well "brought without it. A defendant is not obliged to plead in abatement the non-joinder of a partner who ought to have been a co-plaintiff, but may take advantage of it on the general issue; but it must appear affirmatively that such partner was an acting partner, for if he was merely a dormant partner he need not be joined. An actual, without an apparent interest, in the profits of a concern, constitutes a dormant partner.” It is a principle of law well settled, that a dormant partner (and the court are satisfied from the evidence that Morrison is nothing more), need not be joined with the active partners in a suit. 8 Serg. & R. 55; Morse v. Chase, 4 Watts, 456. And the fact that Bird personally knew Morrison to be a partner (the fact of partnership being conceded) nothing militates against the principle that a dormant partner need not be joined; for- the true distinction we take to be this: that the defendant must know the dormant partner in the transaction which is the matter of litigation; that is the knowledge which the law requires, in order to make an exception to the general rule. 3 Cow. 34; 1 Chitty on Plead. 7, 8; 2 Esp. 468; 2 Taunt. 324, 326. In this the court did not err. The fourth exception is to this charge of the court: “ The several members of a firm cannot transfer to one of them their separate interests in a joint debt, so as to enable bim to sue and recover it in his own name. The original relation of the debtor and creditor cannot be changed without the consent of the debtor. If this were a transfer of this account by the plaintiffs to Morrison, without the consent of the defendant, Morrison would have to sue in the name of the partners, which a judgment in this case in favor of Bird would defeat. It might be competent for Morrison to collect and receive this debt, but it does not appear that it has been actually paid by Bird. Then, as it has not been paid by Bird, and as there is no allegation that Lester H. Cotton, one of the plaintiffs, ever consented to, or engaged in the alleged arrangement between Falce and Morrison the — 300 — plaintiffs’ recovery in this action .cannot thereby be defeated.” The correctness of the instruction here given, is recognized in the case of Horback v. Huey, 4 Watts, 455; in Bun v. Morris, 1 Caines, 54; and indeed it is so clearly recognized in all the authorities, that we do not think it admits of a doubt. In the instruction there is no error. Thus far the exceptions were taken to the general charge of the court to the jury. The fifth charge excepted to, was upon instructions asked for by the defendant in these words: ‘ ‘ That Lester II. Cotton is bound in this matter by the act of Wake, being copartners,” to which the court replied and charged the jury : “ Cotton, in this matter is not bound by the act of Fake, without’his consent.” That one partner may bind his copartner in transactions relating to the business of copartnership, with third persons, is a principle coeval with partnership itself; and it is equally clear that no arrangement about the partnership business as between themselves, by some of the members of a firm, can bind those who do not concur therein. Were it otherwise, it would at any time, be in the power of one partner of a firm to ruin the balance. The sixth and remaining instruction asked for by the defendant, and excepted to as given, is this: “ That if the debt to Fake & Cotton has been paid at their request, and has been credited by Morrison to them, then the plaintiff cannot recover.” To which the judge replied: “ This is a debt to the whole firm, and if paid in any way by defendant, the plaintiffs cannot recover.” This we consider a self-evident proposition. We cannot see, after examination of the whole case, that the district court committed any error in any of the charges or instructions or opinions given. The judgment of the district court is therefore affirmed with costs.