Martin v. American Express Co.

By the Court, DOWNER, J. The counsel for the appellant contends that the circuit court erred in refusing to receive the testimony of Hamilton Spencer. He is alleged in the complaint to be a partner with others therein named, under the name and style of The American Express Company. Ch. 204, Private Laws of 1858, provides that these partners may be sued by the style of “ The American Express' Company. ” This suit is brought according to the provisions of that chapter; and the allegation of partnership, not being denied by affidavit within the usual time of pleading, must be considered admitted, notwithstanding the denials of the answer, which is not verified. R. S., ch. 137, sec. 98. Hamilton Spencer, then, must be regarded as a partner at the time the cause of action accrued, and as a party to the action, though the suit in form [342] is against The American Express Company. The plaintiff sue-ing as administrator, tbe circuit court rightly ruled that Spencer was not a competent witness. The counsel for the appellant has maintained with great earnestness, that the complaint is defective, and the evidence insufficient, for the reason that there is no allegation or proof as to the numbers or dates of the bonds. He says, if the defendants had the numbers and dates of the bonds, they could, by giving to the state of California a bond of indemnity, have procured other bonds in lieu of those lost; also that if they had such information they might have traced and found the lost instruments. This may be true. He has cited no authorities to show that the plaintiff must furnish either the dates or numbers of the bonds, as a condition precedent to recovery; and we know of no rule of law to that effect. There was no rule of the express company requiring it. The position we must therefore hold untenable. The court below rightly refused to charge the jury “that by the receipt attached to the deposition of Lawrence, the plaintiff (if otherwise entitled to recover) could not recover over $150, if the jury should find that the true value of said bonds was not on said package.” The defendant was not a party to that contract or receipt. We see no errors in the proceedings in the circuit court to the injury of the appellant. Judgment of the court below affirmed, with costs.