Richardson v. Debuys & Longer

Porter, J., delivered the opinion of the court. The petition states, that the firm Debuys & Longer, composed of Gaspard Depuys, A. Longer & Benoit, is indebted to the plaintiff in the sum of $5176, the proceeds of 86 bales of cotton, sold on his account, in the months of November, 1821, and March, 1822. . The defendants severed in their answers. Debuys <& Longer, pleaded that there was do such firm as that set forth iri the plaintiff’s petition, and denied that Bfenoit was a partner of it. That the facts alleged in the petition, — 128 — were untrue, and if they should be proved, ⅛ they owed the plaintiff only, the sum ot §131 g5 cents< Benoit’s defence consisted in a general denial. The first points to which our attention has been directed, are presented by bills of exceptions. On the day the cause stood for trial, the 19th of April, one of the defendants filed an affidavit for a continuance, which stated that on the 21st of March, then last past, he had forwarded a commission to Woodville, in the state of Mississippi, which was not returned. The affidavit contained the usual averments, that the testimony expected urn this commission, was material, that it v expected . daily, and that the application not made for delay. The cause had been at issue three years, when this application was made, and under all the circumstances, we are enable to say the court below acted erroneously, in refusing it No explanation is furnished, why the defendants delayed so long in procuring testimony, which might have been so easily had at an earlier period. — 129 — Thev renewed the application on another J ' r affidavit, that they could not go safely to trial without the benefit of the testimony of Benoit, their co-defendant. But the judge most cor-redly refused it; for, even admitting the witness was competent, the affidavit neither states that due diligence had been vised to procure his attendance ; that the application was not made for delay, nor that the defendants expected to get his testimony at. any other time. See the cases of Lafon's, Exrs. vs. Gravier & Al. Martin, vol. 1, 245, and Allard & Al. vs. Lobau, vol 3, 295. The third and last bill of exceptions, was taken to the opinion of the judge, permitting the plaintiff to examine a witness after the parties had closed their evidence, and the defendants’ counsel had opened his defence, by reading his answer to the jury. The witness examined, had been summoned, and attached at the instance of the defendants, and came into court after, the other testimony in the cause had beers heard. We think the judge exercised his discretion soundly in admitting the witness. No general rule can be established in regard to matters of this kind; much .must depend on the particular circumstances of the case. — 130 — The principal objections which have oc- . . corred to us, against extending such inuul-gencCi js ||ie irregularity and confusion which such a practice creates in the conducting of causes, and the opportunity it affords to one party, to keep back important testimony, until the other, supposing the evidence to be closed, has sent his witnesses away. The first matter mast be confided to the judge w ho tries the cause; and the second is not suggested here, for the witness was one who was summoned by the defendant, and brought into court on his special application. 7 John. 306, 4 Sergeant & Rawle, 482, 4 Binney, 198. An application was made for a new trial in the inferior court, where, in addition to the reproduction of the grounds taken in the bill of exceptions, it was contended there was no proof of the partnership alleged in the petition. The jury have found this fact in the affirmative, on evidence which is conclusive against Benoit, one of the defendants, but which is rather weak against the others, De-buys & Longer. The former held himself out to the world, as partner, and cannot now be permitted to escape from the responsibility he incurred by the declaration. Under these — 131 — circumstances, we are unwilling to disturb • . the verdi'ct; more particularly as the only persons who can complain of the evidence, not supporting it, are benefitted rather than injured by the finding. If Benoit was not the partner of Debuys, and of Longer, it is surely no injury to them, to see him made responsible in solido for their debts. On the merits, we entirely coincide with the jury; the money paid to Freeman, was paid without proper authority, and the defendants are clearly responsible. The plaintiff has prayed that the judgment may be amended by adding to the amount found by the jury, $131 95 cents, acknowledged to be due by the answer. And he has contended that as the sum of $1020 78 cents paid Freeman, was the only matter in dispute, and as the verdict is for exactly that sum, it is evident the jury overlooked the admission of the defendants, that the former, amount was doe, independent of the payment to the person who represented himself as the plaintiff’s agent. We are not certain whether the jury took this admission into consideration or not. They may have believed, that under the — 132 — whole circumstances of the ease, the plaintiff was entitled to no more. We do not, therefore, fee! authorised to give a different sum from that found by them, and the plaintiff has not asked, that the cause should be remanded. Eustis for the plaintiff, Carlelon and Lockett for the defendants. It is therefore ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.