Barger v. Collins

Dorsey, J. delivered the opinion of the Court. The plaintiffs having produced in evidence the written settlement, made between Walter F. Athey and James W. Collins, this Gourt think it was competent for the defendant to show, that the items in the settlement were partnership claims due by Collins to Athey and Barger, and to Shoemaker and Athey, and that the testimony offered by the defendant is admissible for that purpose. An account stated is not conclusive upon the parties who made it, but may, by either of them, be contradicted, modified or, explained, by other testimony than is afforded by the settlement itself. The defendant is at liberty to prove, that although upon its face it purports to contain debts due to Jlthey alone, yet that in truth and in fact, it was intended as a liquidation of the partnership claims of Athey and [219] Barger, and Shoemaker and rflhey, made by one partner, as the agent and for the benefit of all; and in a suit, in the name of the firm, the settlement, with such explanatory proof, might be given in evidence, to support an insimul computassent. It hence follows, that the testimony offered by the defendant was competent, as showing that this action could not be supported forthe want of proper parties plaintiffs. The court bffuw were therefore right in overruling the plaintiffs’ objection. But we think they erred in refusing to permit the plaintiffs’ testimony to go to the jury for the purpose for which it was offered. There is some difficulty in conjecturing upon what ground their refusal was made. It cannot be denied that the facts offered in proof by the plaintiffs, raise some presumption of the existence of that which they wished the jury to find from them. If so, the jury, and not the court, are the judges of the weight and credit of the evidence offered, and the inferences of fact fairly deducible from it. The materiality of the testimony surely must be admitted, should the jury find from if that knowledge in the defendant, which it is offered to prove. A foundation would thereby have been laid by the plaintiffs, ii they could have done so, to prove an express promise to pay by the defendant. If such proof were offered, — that the plaintiffs could recover in this action the amount of the debt due from the defendant to Shoemaker and Athey, it is unnecessary to show by reference to authorities. But we do not think that it would be incumbent on the plaintiffs to prove an express promise to pay. If the defendant, knowing of the dissolution of the partnership of Shoemaker and Jlthey, and the assignment of the partnership claims to Athey, accounted with him, as proved by the settlement exhibited on the trial, Athey might have sued in his own name, in tire same manner, as if there had been an express promise to pay; and under the insimul computassent might have recovered whatever amount he could have shown was allowed him in the settlement, as a debt clue to Shoemaker and Athey. That an express promise to pay is not absolutely necessary to entitle the assignee of a chose in action to a suit in his own name — Vide Surtees vs. Hubbard, 4 Esp. Rep. 203. Moore & another vs. Hill, Norris's Peake, 394; and Peacock vs. Harris, 10 East, 104. [220] We think the county court erred also in their opinion on the defendant’s prayer that the plaintiffs were not entitled to recover. The only item in the settlement, the recovery of which the defendant attempted to resist on the ground of its being a partnership claim, was the “balance due on six buildings, Norik Charles-street." As a bar to the recovery of the other two items of $10, and $39 61, the-defendant has offered no testimony. These sums, with the interest thereon, which the jury were authorised to allow, would have sustained the jurisdiction of the court, and might have been recovered in this action. It is true the bill of exceptions states that “the defendant offered evidence of his having paid, for the use of Walter F. Athey, the following sums of money, viz. $20, $30, and $145, by filing .his account in bar.” But surely the mere filing of an account in bar is not such proof of the charges it contains as would warrant the court in withdrawing the finding of the facts from the jury, and recognizing the set-off as a bar to the plaintiffs’ right to recover. Nay, the mere circumstance of the court’s submitting it to the jury, to say whether the account in bar should ' be allowed as a set-off to the plaintiffs’ claim, in the absence of all proof to support it, would be error, for which their judgment would be reversed. We concur with the county court in their first opinion, and dissent from their second and third opinions, as stated in the bill ..of exceptions, and therefore reverse their judgment, and award a procedendo. JUDGMENT REVERSED, &C.