Flower v. Williams

Martin, J. delivered the opinion of the court. The petition charges that the defendant and Waterhouse, being engaged in a commercial partnership for the purchase of drugs and medicines, in the parish, of Feliciana, the latter came to New-Orleans to effect purchases for the partnership, and the plaintiffs were induced to come into acceptances and engagements towards the vendors, at his request, whereby they were compelled to pay several sums of money, amounting to upwards of two thousand dollars, which the partners are bound jointly and severally to refund, and the defendants neglect and refuse, &c. The general issue was pleaded, there was a verdict for the plaintiffs, which the defendant vainly attempted to set aside: [26] judgment was given accordingly, and he appealed. testify to his be-examined as* to the grounds of his belief, and his answers aro vague, the court ■will instruct the jury. jjjg counse| has first called our attention j.Q a jjjjj exceptions to the opinion of the inferior judge, in overruling an objection to the reading of a part of Cooper’s deposition, in which he states, that “Waterhouse exhibited to the plaintiffs, as the deponent verily believes, articles of partnership between the defendant and Waterhouse.” The objection was on the ground that as the witness deposed to a fact, which took place inhis own presence, evidence of what he believed could not be received. It does not appear to us the judge erred, The fact was material and the witness was bound to disclose it. He might have been . examined as to the grounds of his belief, ... and if he gave none or vague ones, it might have been urged that this part of his testimony ought to have no weight, and the court might have been requested to instruct the jury in this respect. The case of Watson & al. vs. M’Callister, 7th Martin, p. 368, must be understood to apply to instances in which the witness on being called on for the grounds of his belief, gives none, It is the prov-inceofthe jury to ascertaiu whether dlugs and me-dicines intended <°r sa>e to other than patients for profit, constitutes a commercial partnership, The defendant’s counsel has contended , , . . that the jury erred m finding a commercial partnership, it appearing that in the neighborhood of his residence, indeed in the country generally, physicians are in the practice of keeping medicines to supply their patients and neighbors, and the defendant and Waterhouse, if they were at all concerned in business, were so as physicians principally, and the apothecary’s shop was only an appendage to their business as physicians. Ttis certainly true that the sale of medicines to the vendor’s patients, and an incidental sale to a neighbor, are not acts which can be viewed as commercial transactions. An innkeeper sells wine to his lodgers, without thereby becoming a merchant. Slocum vs. Sibley, 5 Martin, 682, and the casual sale of a bottle to a neighbor, would not make it so. It was the proper x 1 province of the jury to ascertain whether the drugs and medicines were intended for 0 sale to other than patients, to such a degree 1 ° as to constitute a buying and sale of drugs 1/0 0 and medicines for profit, and thus to be a commercial pursuit: they have thought it [28] was, and we see nothing that can authorize our interference with the verdict, in this respect. Where one partner purchases articles for his own use, the partnership is not bound. The judgment cannot include interest if a remi-titur therefor be entered of record Part of the acceptances paid by the plaintiffs, are for classical books and clothes for Waterhouse’s own use, in which the partnership does not appear to have had any interest, and we deem it our duty to sustain the objection of the defendant to any allowance therefor. The last grounds of complaint against the verdict and judgment are, that the first has allowed interest. The counsel has urged that none ought to have been given, as the claim was liquidated by the verdict alone. That the protest of the acceptances of the plaintiffs, gave no claim to interest, or the law allowing interest on protested notes, if it can be extended to protested acceptances, is posterior to any protest in the present case. The judgment is complained of, as it gives interest according to the verdict, andabsolutely disregards a remititur entered on record by the plaintiffs between the verdict and judgment. It is therefore ordered, adjudged and decreed, that the judgment of the district [29] court be annulled, avoided and reversed, and that the plaintiffs and appellees recover from the defendant and appellant, the sum of thirteen hundred and eighty-five dollars, with costs in the lower court; those of appeal to be borne by the appellee.