Wilson v. Zook

Cooper, J., delivered the opinion of the court. The application for a continuance by the defendants was properly refused. The book desired by the defendants, to be used in evidence, and because of the absence of which the continuance was asked, was last in possession of John D. Wilson, who, on leaving the state, left it, as he thinks, in his room at Mrs. Jones’. Mrs. Jones was introduced as a witness, on the hearing of the application, and stated that she had made search for it, and it could not be found. One book was found by her after Wilson left the state, which was delivered to one McNeely, but it was not the book the defendants desired to have. A subpoena duces tecum to Mc-Neely or to Mrs. Jones would have been unavailing, since it does not appear that either of them had the book, and it was not suggested that inquiry in any other direction would discover it. We cannot affirm that the verdict of the jury is for too large a sum. The account sued on shows a balance due the plaintiff of $480.21, and' the plaintiff testified that it was made up and delivered to him by an employe of the defendants, by direction of John D. Wilson. lie further stated that all the items credited to him thereon prior to June 20, 1888, were correct, to his personal knowledge. If all credits claimed by the plaintiff, after that date, were disallowed by the jury, the amount remaining due to him on the face of the [699] account, with, interest thereon to the date of the judgment, was in excess of the sum awarded him by the verdict. The principal error assigned by the defendants is to the instructions given by the court for the plaintiff. The real controversy between the parties was upon the question whether the appellants were members of the firm of Wilson Bros., or, if they were not, were, nevertheless, liable to the plaintiff by reason of having permitted John D. Wilson to hold them out as such for the purpose of giving credit to the firm. There was evidence offered by the plaintiff tending to prove that appellants were, in fact, members of the firm, and also evidence tending to prove that, if, in fact, they were not partners in the firm, they had permitted John D. Wilson to hold them out as such. For the defendants there was evidence tending to disprove these facts. The plaintiff admitted that he did not know that appellants were, in fact, members of the firm, or had been so held out by John D. Wilson, and that he gave no credit to the firm on account of their supposed membership. At the instance of the plaintiff, the court instructed the jury that, “a man may become liable to the debts contracted in the name of a firm, although, in point of fact, he was not a member of the firm, and no such firm existed. If a man knows that another is using his name in a firm as' a basis of credit, and he permits him to use it to help along the party, then the party so permitting his name to be used, becomes liable for the debts of the firm.” The appellants contend that this instruction is not correct, and that a party permitting his name to be used in a firm of which he is not a member, is liable only to those who extend credit to the firm on the faith of the membership of such person. 'We cannot distinguish the rule announced in this instruction from that announced in the concluding paragraph of the fourth instruction asked and secured by the defendant. By the fourth instruction the jury was told that if it was satisfied [700] from the evidence that appellants were not, in fact, members of the firm of Wilson Bros., the verdict should be for them, “unless they are satisfied, by a preponderance of the evidence, that the plaintiff was induced to make the contract and to do the work on which he sues in this cause by reason of such representation by said defendants, or that the names of George and Marlin Wilson were used by J. D. Wilson in the firm name of Wilson Bros, by their knowledge and consent, and in the interest of said firm of Wilson Bros., in which event defendants would be liable to plaintiff for the debt sued on.” The appellants cannot assign for error the action of the court in giving an erroneous instruction for the plaintiff", when they themselves prayed and received the same as announcing the law by which the jury should be guided. Insurance Co. v. VanOs, 63 Miss., 431. Affirmed.