Zollar v. Janvrin

Bellows, J. "We see nothing in the opening of the plaintiff’s counsel that ought to disturb the verdict. If statements had been made by the counsel fraudulently, knowing that no proof could be offered in their support, and they were of a character likely to 'injure materially the defendant, even after instructions to the jury to disregard them, the judge, who tried the cause, might be justified, in a strong case, in setting aside the verdict. It would stand, indeed, upon much the same footing as statements of fact made by counsel in a closing argument to the jury, which have been held when they were made against t.he exception of the other party to be cause for setting aside a verdict. Tucker v. Henniker, 41 N. H. 316. In the case before us, however, it does not appear that the opening statements were fraudulently made, or that exception was taken to them during the trial, nor can the court see that they were calculated to injure the defendant. The testimony of North seems to have been withdrawn upon the suggestion of the court, that its competency was doubtful, and it is to be assumed from the case that it was withdrawn with the judge’s permission. If so, it is not a cause for disturbing the verdict, for it is well settled that it is competent for the judge in his discretion to strike out evidence that has been improperly admitted, upon giving1 proper instructions to the jury ; and as no complaint is made on that score, it is to be presumed that the proper instructions were given'. In The Judge of Probate v. Stone, 44 N. H. 606, evidence was ruled out after the arguments of counsel and the charge to the jury, and held to be within the discretion of the judge. We think there was no error in declining to give the instructions [327] prayed for. One branch of the request was, that if the parties were equally innocent, and plaintiff was more negligent in not ascertaining the dissolution of the partnership, than Janvrin'was in giving notice, the loss must fall on the plaintiff. On this point the instructions were, that if the plaintiff was in the habit of dealing with the firm before the dissolution, and had no actual knowledge of the dissolution, and was not put upon inquiry in regard to it, but believed Janvrin still to be a partner, he could recover. This, we think, was entirely correct; and the doctrine is well settled in respect to persons in the habit of dealing with a firm that actual knowledge must be brought home to them; at least, that the credit was under circumstances from which actual notice might be inferred. 3 Kent’s Com. sec. 67, and cases cited; Story on Part. sec. 161; Graves & al. v. Murray & al., 7 Cow. 701. In Graham & al. v. Hope & al., Peake N. P. case 154, it was laid down by Lord Kenyon, that it was incumbent on persons dissolving a partnership, to send notice of such dissolution to all the persons with whom they had had dealings in partnership. See, also, cases cited in note to that case. So is Ketchum & al. v. Clark, 6 Johns. 144, and cases cited; Vernon v. The Manhattan Co., 17 Wend. 528, and cases cited. The instructions given in the case before us, that there must be actual notice, or the plaintiff must have been pttt upon inquiry, accords, we think, with the authorities ; and we think the court was right in declining to instruct the jury that the plaintiff’s right to recover would depend upon the inquiry whether the plaintiff was more negligent in not ascertaining the dissolution, than was Janvrin in giving notice. Such a comparison would, we think, be likely to confuse and mislead a jury ; and besides the case does not in any sense turn upon it, the real inquiry being whether plaintiff had actual notice, or had such information as made it his duty to make further inquiries ; and such was the view taken by the judge who tried the cause. In respect to the other branch of the request, viz., that if plaintiff had the means of knowledge, and in the exercise of reasonable diligence might have ascertained the dissolution, he cannot recover, it may be admitted that if this is understood with the qualification that plaintiff was also put upon inquiry, it would be correct; and in such case it would accord substantially with the instructions actually given, and no exception would lie. . If it is to be understood without this qualification the court did right in declining so to instruct the jury, because it is obvious that plaintiff might have had ample means, and might readily have ascertained the fact, and still might not have been put upon inquiry, or, in other words, nothing might have appeared to call reasonably for such an inquiry. We think, therefore, that there was no error in declining to instruct the jury in the terms requested. Nor do we think that the notice in the Post was in law notice to the plaintiff, nor did it put him upon inquiry, unless it was brought to his knowledge. This was so held in Graham & al. v. Hope & al., Peake’s Cases, 154, before cited; Ketchum & al. [328] v. Clark, 6 Johns. 148; Graves & al. v. Murray & al., 6 Cow. 701; 3 Kent’s Com. sec. 67; Story on Partnership sec. 161. Prom these cases it appears that circulars ought regularly to be sent to all the persons accustomed to deal with the firm, and also that it is not sufficient, as matter of law, that a creditor was accustomed to take the gazette containing such notice. The charge that the record of the mortgage was not, as matter of law, notice, was correct. In any question involving the title to the property mortgaged, a proper record of a mortgage duly executed would be constructive and conclusive notice to subsequent purchasers, because it would be their duty to look to the registry and see if there were prior conveyances. Tripe v. Marcy, 39 N. H. 439. No such duty, however, rested upon the plaintiff here. The law did not require that the retirement of Janvrin from the firm should be registered, and there could be no obligation upon a creditor to look for a record; and consequently such a record is not constructive notice. If the plaintiff had seen, or been informed of, a conveyance that stated the fact of the dissolution, it would have put him upon inquiry, although no such record was required by law. Hastings v. Cutter, 24 N. H. 481. The knowledge of a record, however, of a mortgage by Paul to Janvrin of personal property, even if the property corresponded to the stock of goods in the store of the firm, would not in law be notice, but only evidence proper to be considered by the jury, and we perceive no error in the instructions upon that subject. There must, therefore, be Judgment on the verdict. [Doe, J., dissented in respect to the withdrawal of evidence.]