Garner & Neville v. Myrick

Fishes,, J., delivered the opinion of the court. The defendants below were sued as copartners upon a promissory note, signed in the name of the copartnership; and one of them denied under oath, that he was at the date of the note a member of the firm. The plaintiffs on the trial introduced a witness, and proposed to prove by him, “that pending a negotiation for a compromise between the plaintiffs and defendant, the latter admitted,, that at the time the note sued on was made, he was a partner of the firm of J. Myrick & Co.” The counsel for the defendant objecting to this evidence, on the ground that it came within the rule excluding admissions made for the purpose of compromise,, the court sustained the objection. The rule is thus stated by the Supreme Court of Massachusetts: “ The general proposition stated in the books is, that an offer to pay money by way of compromise, and to get rid of an action, is not evidence of a debt; if the object be to buy peace, it is plain such an offer carries with it no evidence of the justice of the demand, and it would have a tendency to prevent amicable adjustments, if such offers were to be used against [452] tbe party making them.” But tbe admission of particular facts, independent of an offer to pay, does not bear tbe same character. Marsh v. Gold, 2 Pick. 290. Tbe testimony bere offered comes witbin tbis latter description, and was therefore admissible. We are of opinion, that no error was committed in excluding tbe evidence of tbe other partner. • He was a party to the record, and was interested in tbe recovery of a judgment, in tbe event of tbe copartnership effects being insufficient to satisfy it, as be would in such event have bis recourse against tbe other debtor, for a moiety thus paid. Judgment reversed; venire de novo awarded.