Whitmam v. Wood

[678] By the Court, Whitost, C. J. The single question to be decided in this case, is, whether by the revised statutes (chap. 98, § 90, 91) the testimony offered by the defendant, Axford, was properly excluded. The action was brought by Wood against Whitman & Axford as partners. Whitman was defaulted, and Axford pleaded the general issue merely. There was no denial of the existence of the partnership, as it was averred in the declaration; nor was execution of the note denied by any plea which was verified by an affidavit. By force of the statute, both these facts were therefore admitted for the purposes of the trial. But the statute cannot be so construed as to exclude any defence which is consistent with their existence. But it may be contended that § 91, above referred to, goes further, and we will for that reason quote it. It is as follows : “On actions against two or more defendants upon contracts in writing alleged to have been executed by such defendants as partners, or otherwise, proof of the joint liability of the defendants shall not be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or the filing of pleas denying the execution of such writing, verified by 'affidavit.” By this section Axford was prevented from denying the execution of the note, and the plaintiff would have been entitled to judgment, unless some defense was interposed which was consistent with its execution. The plaintiff when ho read the note in evidence to the jury, was prima fade entitled to to a judgment. This, we think, is the effect of the statute. But for the statute, the plaintiff would have been obliged to prove the existence oí the partnership, and the making of the note. But surely the statute could not have been intended to exclude a defense which admits both these facts and sets up other matters to defeat the action. Suppose that Axford had offered to prove that the note had been paid; We do not [679] see Rut that, under the ruling of the judge, the defense must have been excluded, because the facts which he did offer to prove, were equally consistent with the existence of the partnership and the ;,malrfng of the note by one of the partners. >.. The judgment is reversed and a new trial ordered.