Hess v. Ferris

Mr. Presiding Justice Wall delivered the opinion oe the Court. This is an appeal from a judgment for $49.50 recovered by appellee against appellant as surviving partner of Benton Colvin. Appellant and Colvin were partners as attorneys at law, and the claim of appellee was that the firm had failed to pay over to him a sum of money collected by them upon a judgment in his favor against the estate of one Logan, an insane person, for whom appellee had at one time been conservator. The evidence tended to show that the money had been so collected, but the appellant insisted that it was done by Colvin in his personal capacity and not as a member of the firm. Indeed it seems to be urged that his action in that regard could not be binding on the appellant as his copartner. While it is true that one who is a member of a firm may transact business in his personal capacity of the same sort as that in which the firm is engaged, and in such case the firm would not be liable, yet we think there is sufficient evidence here to support the conclusion that this transaction was by Colvin in the name and on account of the firm, so understood by him and by the appellee, and that it was within the scope of the partnership business—though it may be true that appellant was not consulted and may have known but little, if anything, about it. Having held Colvin out as his partner he must be bound by his acts in that behalf. It is urged that the appellee transferred the judgment to the firm for the purpose of hindering his creditors, and there was some evidence tending to prove the charge. He denied ’it, however, and this was a question of fact for the jury which they solved in favor of appellee. The court instructed the jury that if the judgment was transferred for such purpose the action could not be maintained, and .there is no objection to the instructions on this or any other point in the case. The appellee insisted that he did not transfer the judgment at all but merely gave a written order or authority to the attorneys to collect it, and in the course of his testimony he was permitted to state the language or the substance of it as contained in the writing which had been delivered to the present conservator, who had paid it. This testimony was objected to “ on the ground that this was an arrangement with Mr. Colvin when Mr. Hess was not present,” as appears from the record. The objection now made that it was erroneous to allow oral proof as to the contents of the writing was not then urged. If it had been perhaps it could have been obviated. Having placed the objection on the specified ground stated, which was clearly not valid, the appellee waived the objection now urged. We find no substantial error in the record and the judgment will be affirmed.