Robinson ex rel. Cooper v. Magarity

Bkeese, J. The first three points made by the defendant in error are not substantial. There is no presumption of law or fact, that any firm name includes any number of persons more than one, and plaintiffs suing in a firm name, are not required to show who compose the firm, unless it is put in issue by a proper denial, verified by affidavit. A suit is brought by John Smith & Co., plaintiffs, and the defendant goes to trial upon the merits without calling for proof of the company, he cannot afterwards object, that the parties are not well described. Ch. 40, sec. 7, Scates’ Comp. 256. The writ of error, however, which is a new suit, is in the name of William E. Eobinson and Columbus Dunham, and there is nothing appearing in the record to show that they were the parties below suing as Eobinson, Dunham & Co. The writ does not appear to be in that case. It is said by plaintiffs in error, that they could not sue out a writ of error in the firm name, and were bound to use the proper names. We understand a writ of error is to be sued out in the same names in which the proceedings below were conducted, and in no other. But it is contended by the plaintiffs in error, the defendant has admitted them to be the parties plaintiff below, by joining in error. This, we are disposed to think, would be a recognition by the defendant, that they were the parties below, else the defendant would have moved to dismiss the writ of error. He has not done so, but went to issue upon the errors assigned. Where a defendant comes in voluntarily, or pleads by the name alleged by the plaintiff, he is estopped to allege anything against it. And the same is the rule if he does not deny the names in which a plaintiff sues. They are both equally in abatement. Jac. Law Diet., title, “ Abatement.” As to the merits of the case, it is a familiar principle, that conversations preceding and leading to the consummation of a contract, which is reduced to writing, cannot, in general, be given in evidence to vary or destroy the effect of the writing. It appears quite clear, from the testimony of Wood, that his conversation with Seery, in the barn yard, must have occurred before the note was given. He says himself, he was was not present when the trade was made. He went away, and was gone an hour or two, and when he came back, the mill was set up and they had been trying it. After he came back in the morning of the trade, he saw the mill had been running—there was meal in it. This corroborates the testimony of Seery, who says defendant did not make the note until he had tried the mill. They tried it in the morning, ground one box full of corn, and defendant said he was satisfied with the mill. They then ground some wheat, and defendant was satisfied with that, and then gave his note-. The conversation spoken of by Wood, was of a contract which the parties had been talking about, and which involved a return of the mill if it did not suit. Now, since defendant has not returned the mill, the inference is strong, that it was not the contract which ended in giving the note. The- presumption is, that defendant is a man who pays but little regard to the representations of agents employed' to sell machines which so often prove to be humbugs, and that he preferred his own judgment after a full trial, on which to rely. It was when Wood was away, as he himself' states, the machine was set up, the performance of which so well satisfied the defendant that he executed his note for the price, and he is now in the full possession and enjoyment of the mill. He would, doubtless, have been better pleased if- the plaintiff would have consented to take half the agreed5 price for it. It is not consistent with justice or fair dealing, that the defendant should have the machine, and the price of it also. The witness Seery told a very plain and reasonable tale, and was corroborated by Wood, and why the jury should have paid no attention to his testimony, the record does not disclose. We know of no right a jury has to discredit a' witness who is not impeached—whose statements bear the mark of great probability—were made with an air of great candor, and who was corroborated by another witness, and in no way assailed. We do not recognize any such right. We think justice has not been done in this case, and in order that there may be a new trial, the judgment is reversed, and the cause remanded. Judgment reversed.