Beatty v. Ambs

By the Gowrt Berry, J. The depositions offered on the trial below, were properly excluded. They were attempted to be taken under the old rules found in 1 Minn. Rep. Rule 13 required that the commissioner should “indorse upon the commission the time or times, and place of executing it.” The indorsement upon the interrogatories which were attached to the commission, and might be regarded as forming a part [334] thereof, (Hurd v. Pendrigh, 2 Hill, 502,) did not contain sufficient -to satisfy the rule. The final certificate, (as it is called in the bill of exceptions,) which was a paper annexed to the depositions, can hardly be said to have been indorsed upon the commission, in the sense and meaning of the rule. It must be confessed that it is difficult to see any substantial reason for requiring this indorsement to be made upon the-commission, or how any greater facility is offered for fraudulent practice, where the return is upon a separate piece of paper annexed to the deposition, than where the return is upon the commission itself; and this view seems to have been acted upon in the promulgation of Rule 26, 6 Minn. 17. But at the time when the depositions were taken, Rule 13, above referred to, was in existence, and the defendants had a right to rely upon its enforcement. We are unable to perceive how judgment can be rendered for the plaintiffs against the defendants jointly, as late partners, on the admissions contained in the answers. The complaint sets out a cause of action against the defendants jointly, for goods sold and delivered. The separate answer of Ambs, denies the sale and delivery in toto, but alleges that certain goods were by the plaintiffs put into the hands of Ambs & "Wittman, to be sold on commission, and that said goods were sold to the amount of $70 50, for which he admits an indebtedness on the part of the late firm of Ambs & Wittman. The statements contained in the answer are denied in the reply. It is plain that this answer contains no admission of any part of the cause of action set up in the complaint. The separate answer of Witt-man admits a sale and delivery of goods to the amount of $40 00. It is insisted by the plaintiffs, that as both answers admit a former partnership between the defendants, the admission of one as to any partnership transaction, binds both of the partners, although that admission was made after the dissolution of the partnership. Whether an admission made by one partner, after a dissolution, will bind the firm, is a some [335] wbat vexed question. See 3 Kent, 49; Story on Part., Secs. 323-4; 1 Gr. Ev., Sec. 112 and notes; Van Keuren v. Parmalee, 2 N. Y. 524. Put even if such an acknowledgment be competent and admissible, it is quite generally agreed that it is not conclusive, and that the joint contract must be proved aliunde. Collyer on Paid. Sec. 423; Cady v. Shepherd, 11 Pick. 408; 3 Kent Com. 50; Bridges v. Gray, 14 Pick. 61; Vinal v. Burrill, 16 Ib. 406. Yet no attempt is made to establish any joint contract, except by reference to the admissions contained in the answers. The admission of indebtedness found in Amb’s answer, for the reason before given, is of no avail; and it may be added, that it is certainly somewhat singular for a plaintiff who has sworn to a given state of facts in his complaint, which is denied im, toto by at sworn answer, to ask for a judgment upon the facts set up in the answer, which he has in his turn, denied in a sworn reply. The answer of Wittman, admitting the joint liability set up in the complaint, to the extent of $40 00, if it be competent, is, as we have seen, not conclusive. Now the court, to which the application for judgment for the sum of $40 00 was made, was asked to render judgment upon the pleadings; and an examination of the answers would show that the facts admitted as to the sale and delivery by Witt-man, were denied by Ambs. As Wittman’s admissions were not conclusive, the court might very properly determine that they were insufficient to overcome the answer of Ambs, and therefore failed to make out a case for the plaintiffs. It is further claimed by the plaintiffs, that if they are not entitled to judgment against the defendants jointly, they should have several judgments against them, for the amounts admitted by them respectively. The plaintiffs bring this action against the defendants on an alleged joint contract. None but ayomi contract is admitted by either answer. There is no several liability shown, and no basis for several judgments. See People v. Cram & White, 8 How. 152; 9 Ib. 210; 1 Ab. [336] Pr. Rep. 231; 2 T. & S. N. Y. Pr. 2-5; 15 Barb. 527; 16 Barb. 41; 11 How. Pr. Rep. 199; Fitz v. Clark & Co., 7 Minn. 217. Sec. 38, page 536, Pub. Stat., has no application here, because this is not an action in which one joint associate is sued for the obligations of all; neither is there any proof of the joint obligation for which recovery is sought. Judgment affirmed.