Gettins v. Hennessey

Mr. Justice McBride delivered the opinion of the court. Counsel for plaintiff state concisely in their brief the questions involved in this appeal, and we will now consider them in the order therein enumerated: (1) Was there prejudicial error committed by the lower court at the trial, either in the introduction of evidence or in his instruction to the jury? (2) Was there a copartnership, under which the debt sued upon in this action was contracted? (3) If so, was the appellant herein a member of such partnership? (4) Was there any legal .evidence before the jury upon which it could base the verdict upon which the judgment herein is based? (5) Is the judgment, in this action appealed from, void ? 1, 2. We are of the opinion that the court erred in admitting the testimony of plaintiff and other witnesses as to whom they understood composed the S. Y. W. C. R. R. Co. The answers elicted show clearly that they had no knowledge upon the subject, except from hearsay— common rumor, cards, and newspaper items, not shown to have been authorized by or brought to the knowledge of defendant Hennessey. Still worse is the admission in the answer of witness Stevens to this question: “From the card which was handed you, from your dealings with this man Stutsman, and from the newspaper articles which you saw at the time of your employment, concerning the purposes or formation of the S. Y. W. C. R. R. Co., whom did you understand the members of that company to be?” Here certain data was first introduced, much of it wholly inadmissible and the witness was asked, in substance, to state what conclusion he arrived at from the data so adduced. The facts were for the jury, which could draw its own conclusion. The conclusion of the witness from these facts was entirely immaterial. 3. The item in the Coos Bay News was improperly admitted. It was not shown to have been authorized by defendant, or to have been brought to his notice, and if [574] it had been, there is respectable authority for holding that he was not bound to contradict it. Fearn v. Tiernan, 4 Rob. (La.) 367; Munton v. Rutherford, 121 Mich. 418 (80 N. W. 112). Both on authority, and reason, it would seem that where one is advertised in a paper, or by the circulation of a business card, as being a member of a firm, he owes a duty to the public, as an honest man, to contradict such advertisement; and that his failure to do so may be considered by the jury as evidence of his acquiescence in the advertisement. Fletcher v. Pullen, 70 Md. 205 (16 Atl. 887: 14 Am. St. Rep. 355). But in this case there is not the slightest evidence indicating that defendant ever saw the printed card issued by the S. Y. W. C. R. R. Co., and the newspaper item was in no sense an advertisement. 4. The testimony for plaintiff indicates that he entered into the contract and had performed a great part of the work before either the cards or the newspaper item were printed, and he is not therefore in a position to claim that he entered into the contract or performed the work by reason of any representation therein contained. 5, 6. The only testimony, which we now recall, tending to show a liability of any kind on the part of defendant is that of Bruschke, who states that he asked defendant whom he should pay money to in case he sold any property for the company, and defendant said to pay it either to himself or to Knuppenburg. He also testifies that defendant told him that they had formed a corporation, and that he had put in his own holdings, along with those of Goodall, Perkins, and the company, for whom he was agent, and that everything was all right. The same witness says that defendant told him that he was treasurer of the company. This testimony tends to prove, if anything, that defendant was assuming to act as an officer for a de jure or a de facto corporation. It is certainly not an admission of a partnership, and it does not [575] appear that it misled plaintiff into the belief that defendant was a partner. Conceding this scrap of evidence to have been admissible, on the theory that defendant thereby held out that he was a member of the S. Y. W. C. R. R. Co., and falsely represented that it was a corporation, when, in fact, he knew, or ought to have known, that it was not, it was insufficient to establish the plaintiff’s case, unless followed up by evidence that such representation was the efficient cause, or at least one of the reasons, why he rendered the services. In Morback v. Young, 51 Or. 128 (94 Pac. 35), this court laid down the rule to be applied in such cases as follows: “But as there was no partnership, and plaintiff had no contract with Young, it was necessary for her, in order to charge him with liability for the contract of Morback, to show, not only that Young was, by his consent, held out as a partner, but that she knew of such holding out at the time she rendered the services, and that she performed such work on the faith thereof.” Counsel for plaintiff very properly disclaim that there can be a recovery in this case on the theory that defendant allowed himself to be held out as a partner, and in the whole record we fail to discover any testimony indicating that he was, in fact, a partner. We think that the learned judge who tried this case was, in the haste incident to the trial, misled by some expressions used in the opinion of this court in the case of Farmers’ Bank v. Saling, 33 Or. 396 (54 Pac. 190). But an examination of that case indicates that such expressions are not applicable to the present case. In that case there were two firms in the same town with names nearly identical, one carrying on a merchandising business under the name of Frank Saling & Co., consisting of Frank Saling and P. A. Worthington, and the other conducting a milling business; the corporation consisting of I. H. Saling, Frank Saling, and P. A. Worth [576] ington. Owing to a similarity of names, and the fact that two of the persons were members of both firms, the court, to identify which firm was the real debtor, admitted testimony very similar to that admitted in the case at bar. It was not admitted to show the existence of a partnership, but to identify which of two firms the plaintiff was doing business with; the court saying that the answers of the witnesses showed that their alleged expressions of opinion were really statements of facts within their own knowledge, and not mere hearsay. The case stretched the rules of evidence to the very verge, and as to the admission of part of the testimony the court remarked, that it was a procedure not to be commended. Here the full examination develops the fact that the whole of the testimony as to plaintiff’s conclusions that Hennessey was a partner is founded upon incompetent data and hearsay. He was not hired by defendant, received no directions from him, nor had any dealings with him. Neither did he see the newspaper items nor the printed card until his work had progressed fairly toward completion. Although he saw Hennessey frequently, he made no inquiries of him as to his connection with the company, but seems blindly to have assumed that Knuppenburg and the alleged “Colonels” Butts, Wilson, and their agent, Stutsman, were responsible. When the crash came, the “Colonels” and their high private, Knuppenburg, seem to have beaten a hasty retreat, and, unless defendant can be held as a partner, plaintiff seems to be in a fair way to lose the value of his services. We do not think that plaintiff has introduced any testimony tending to show that defendant was a partner. The cause will be reversed and remanded to the court below for such further proceedings as may be necessary, not inconsistent with this opinion. REVERSED.