Chambers v. Grout

Seevers, J. The material inquiry on the trial was whether the defendant and Bennett were partners, or had held themselves out to the world as such. For the purpose of establishing such issue, the plaintiff introduced as a witness one Williams, and proved by him that he liad a conversation with the defendant, in which it will be conceded that the defendant made admissions tending to prove the partnership. A short time after this conversation, the witness had a conversation with Bennett, and the plaintiff sought to prove what the latter said. This evidence, as we think, was rightly excluded by the court. It is not claimed that it was a part of the res gestae, and it is clear, we think, that the declarations of one person are not admissable to prove that another person is or is not his partner. No objection is made to the instructions, but it is assigned as error that the verdict is contrary to the instructions and contrary to the weight of the evidence. In neither proposition do we concur. We think the verdict is fully warranted by the evidence, and is not contrary to the instructions. Under the latter, the jury must have found, either that the defendant never executed the contract, and there was no partnership, or that the plaintiff accepted what was done as a completion of the contract, and delivered the wagon. This being so, it is immaterial whether the court erred in the admission of evidence which had a tendency to limit the extent of the plaintiff’s recovery, and erred in the instructions given the jury on this question, or not, for the jury have found that the plaintiff is not entitled to anything. He therefore was not prejudiced by evidence which tended merely to lessen the amount to be recovered. The defendant, when on the stand as á witness, was permitted to testify that he was not in pratnership with Bennett, [344] and also was permitted to explain circumstances testified to by others, which tended to so show. The action of the court in this respect is assigned as error. We deem it necessary only to say that in our opinion the evidence was clearly admissible. Aeeirmed.