Howard v. Woodward, Faxon & Co.

[108] The opinion of the court was delivered by JohnstoN, J.: Woodward, Faxon & Co. brought an action against C. L. Dixon and Charles Howard to recover $403.50 for drugs alleged to have been purchased by them. The petition averred that the goods were sold to Dixon and Howard and that they were jointly liable for their price. Dixon was not served and did not appear or answer, but Howard answered by a general denial. Over objections, testimony was offered to show that a partnership existed between Dixon and Howard, and, although it was denied by Howard, the court specially found that they were partners, and upon this testimony and finding Howard was adjudged to be liable for the debt. It is first contended that, as no mention was made of a partnership in the petition, no proof showing its existence was admissible. A joint liability was alleged, but how it arose was not stated, as good pleading required. No attack, however, was made upon the petition that the facts respecting the joint liability were not fully and definitely pleaded. In the absence of such an attack, proof that the joint liability arose by reason of the partnership between them was admissible. A more serious question arose as to the character of the proof offered to establish the partnership. Its existence was the principal contention between the parties. The business was conducted in the name of C. L. Dixon, and, while there was much proof tending to show the partnership, Howard positively denied that he had any interest in the business, or connection with him except as a creditor. Over the objection of Howard, the court admitted in evidence written statements and declarations made by Dixon to the effect that Howard was a partner. They were not signed by Howard, nor claimed to have been made in his presence, nor was it shown that he ever had any knowledge that they were made. One of these was a letter signed by Dixon, which contained a positive declaration ■ that Howard was a half owner in the store with him, and another was a credit statement, filed and [109] in the handwriting of Dixon, which contains the statement that the members of the firm are Dixon and Howard. It has been well decided that, “ where two persons are sued as partners, and the question of partnership is put in issue, the statement of one of such persons in the absence of the other is not evidence against the other that they are partners.” (Johnston v. Clements, 25 Kas. 376; 17 Am. & Eng. Encyc. of Law, 1317.) As Howard’s liability depended upon the existence of the partnership, and as that was the main issue in the case, the admission of this testimony was material error. The judgment of the district court will therefore be reversed, and the cause remanded for another trial. All the Justices concurring.