Catlin, Peeples & Co. v. Gilders , 3 Ala. 536 ( 1842 )

COLLIER, C. J

In Gilbert, et al. v. Lane, 3 Porter’s Rep. 267, tbe writ issued against several defendant's, but was executed upon one only. In tbe margin of the judgment entry; the names of all the defendants were stated at length, and the judgment recited that the defendants came by their attorney, and say nothing in bar of the plaintiff’s action, &c. The Court held that, “'the names of all the defendants' on the margin of the entry, and the statement in the entry, that the defendants appeár-ed by their attorney, show clearly that the three defendants all appeared in the suit.” That case'is clearly distinguishable from the .case at bar; here, but one of the defendants pleaded, so that as to him only, the case could regularly have been submitted to the jury; and. when it is said that the parties came by their' attornies, the reasonable inference is, that they only cámfe, Who had made up an issue to be tried by 'the jury. Had the defendánts who had not appeared and' pleaded, have’ attempted to litigate the facts, the Court Would doubtless have denied to them the right to do so, if objected to by the plaintiffs, because théy had not interposed in a legal form, a denial of the plaintiffs cause of action. This reasoning is not opposed by any thing appearing in the record. ' The names of the defendants' are not set oat at length in the margin of the judgment; they are styled ás Catlin, Peeples & Co. and the recital in the entry, is not that the defendants came, &c. but that the parties Came by their attornies, and that the jury Were empan-nelled “ to try the issue joined,” thus excluding the presumption, that the liability of the defendants who were not parties to the issue, were to be determined by the jury. Nor does the verdict assume to charge the defendants; it is a mere finding of the issue in favor of the plaintiffs, and an assessment of their damages ; but it is the judgment consequent upon the verdict, which determines they are liable. From what we have said, it follows that’ the judgment of the Circuit Court is erroneous in having been rendered against defendants, who had neither been served with process nor appeared.

We might here close this opinion, but as other questions of law are raised upon the record, and have been discussed at the bar, it is proper to consider them, that a guide may be furnished for the ulterior action of the Court below.

In respect to the admissibility of the note on which the action was brought, there was no necessity for proving it to have' been made by the parties declared against, or either of them,, before reading it to. the jury as evidence ; if it was correctly described in the declaration, the defendant, could not be allowed to insist before the Court, that it should be excluded from, the jury, because it was not his act. The parties had already joined- issue upon that point, and agreed to refer to the jury the examination of the facts, and the first step in the trial, was the production of the note; for until that was before, the jury, the. plaintiffs could not have introduced their evidence to disprove the defendant’s plea. A question very similar in principle, was raised in the ease of Bell v. Rhea, Conner & Co. 1 Ala. Rep. N. S. 83. In that case, it appeared that the defendants in. error declared on a promissory not.e, payable to them, by the name of Rhea, Conner & Co. under the plea of non assumpsit, it was objected in the Court below, that, the note was not admissible evidence, until the plaintiffs proved that they were the individuals composing the firm, to whom the note was payable, but the objection was overruled., and the question here made, was, whether the note had been properly admitted. This Court say, “ the note was property described in the declaration, and clearly tended to prove a very material part .of the plain: tiffs case; it was the first and indispensable link in the chain of evidence, which was to establish his case; and being excluded, no matter how just his demand, he .could not have recovered.” Further, !‘the true rule seems t.o be where the evidence is unobjectionable in itself, and tends to prove a material fact in issue, it should be allowed to go the jury, who are the proper judges of the effect to be given to it. No inconvenience can result from this rule, in practice, since the Court can always instruct the jury as to the sufficiency of evidence.” To the same effect is Emerson and another v. The Providence Hat Man. Co. 12 Mass. Rep. 237, 244. These cases are conclusive to show, that the Circuit Court very property rejected the evidence, by which the defendant proposed to show to the Court that the note declared on, was not made by him, or his authori- • ty; and that the permission of the plaintiffs to place, it before the jury, even without, additional evidence, would have been regular.

As a general rule, a party cannot give evidence of his decía-rations for the purpose of establishing a demand- in his favor, or to resist a recovery against himself. The application of this principle, to the offer of the defendant to prove that he had refused to recognize or pay some notes made by Catlin, in the name of-Catlin, Peeples & Co. after the death of Heard, shows that such evidence was inadmissible.

Although the death of Heard, i-pso facto, dissolved the partnership of Catlin, Peeples & Co, yet it was competent for the survivors to invest each other’, or any one of their number’, with authority to borrow money, and make notes upon their joint account, in order to pay the debts of the firm. And it was per-missable for the plaintiffs to show that the defendant recognized the authority of the other surviving partners, thus to pledge his responsibility, by proof of his admissions or declarations to that effect. If the survivors conferred such an authority upon each other, the statement of one of them upon obtaining a loan of money, that it was to be applied in payment of the firm debts, would be evidence against the others: This is implied from the nature of the power granted, which makes each the agent of the other for a defined and specific purpose, but as it respects third persons 'who may lend money, they are agent's for the purpose of borrowing generally; otherwise the lender for his own protection would be compelled to look t'o the application of the loan — an idea which cannot be tolerated.

The purpose for which a partnership was created, and the extent of the authority of the individual' members, is riot to be limited by the articles, under which their connection was formed, but is to be ascertained, rather from the character of their dealings, and the manner in which they hold themselves out to the world. In respect to the firm of Catlin, Peeples & Co. one witness says they dealt in dry goods and groceries, and were in the habit of trading in any thing on which they could make money. Taking this statemént as literally true, and 'it cannot be questioned, that Catlin might, during the continuance of the partnership, have purchased hogs or other stock, on account of the firm. Conceding that the Court had no discretion as to admitting or rejecting the evidence offered after the plaintiffs had closed their testimony in answer to the defendant,'yet from what we have said it is apparent that the defendant was not prejudiced by the exclusion of the articles of partnership— these operated inter partes, but could not override the effect of their general course of dealing, so far as the plaintiffs were concerned.

The refusal of the Circuit Court to permit the defendant to withdraw from the jury, the evidence he had offered, and to demur to that adduced by the plaintiffs, was certainly correct. A party who has offered evidence to the jury, cannot be permitted to- demur to the facts which his adversary has proved : Young v. Black, 7 Cranch’s Rep. 565; Pawling, and others v. The United States, 4 Cranch’s Rep. 219; Pharr & Beck v. Bachelor, at June Term, ’41. And a Court could not, with a just respect for the administration of the laws, permit a party to speculate upon the chances of success, by first offering evidence to the jury, and then, when he has ascertained it to be unsafe to entrust his case to them, to ask leave to withdraw his evidence, that he may submit to the decision of the Court.

In regard to the charges prayed, and refused, or given to the jury, we will consider them in the order in which they are stated in the bill of exceptions. The Court gave the first, as asked, that is, it instructed the jury, that the plaintiffs must show the defendant’s liability to pay the note sued on, qualifying the charge, with the remark, that the proof need not.be conclusive, but that it was necessary for the plaintiffss to make out their case, by showing, prima facie a right to recover. The Court gave the second charge prayed, affirming that the death of Heard, operated a dissolution of the partnership of Catlin, Pee-ples, &• Co. and that if the note in suit, was executed after such dissolution, without defendant’s consent, he is not liable. But in addition, the Court say if the surviving partners consented to the giving of such note or ratified or recognized the act, they should find for the plaintiffs; for in such case the note would be good against the survivors, and void as to the representatives of the deceased partner. The correctness of the qualification of the first charge is too plain for argument, and the addition to the second, has, in the view taken of another part of the case, been shown to be in conformity to law.

The third charge asked, supposes, that a promissory note is not evidence under a count upon an account stated, but to entitle the plaintiffs to recover, under such a declaration, the consideration of.the note must be shown. This charge was pror perly. refused,, and the note held to b.e sufficient evidence in itself.. Authorities, are ample to sho.w, that the law requires no other evidence than the note itself: Chitty on Bills, 9 Am. ed. 596; Hunley v. Willis, Lang & Co. 5 Porter’s Rep. 154; Gillaspie, et al. v. Wesson, 7 ibid 454.

. But the fourth charge prayed,, should, have been given. It was a request of the Court to declare, a well settled principle in the law of partnership, viz: that partners are. n.ot liable for each others acts, to a. greater extent, than they appear by their, general course, of dealing to have authorised. Under the state of the pleadings, such an instruction was proper, and. being so, the defendant was entitled to. have it given, in the terms, in which it was asked. If the Court supposed, that a charge thus general, was calculated to mislead, or embarrass the jury, its effect and meaning could have been explained. .It js unnecessary to consider the last instruction given, for conceding it to, have been correct, it can’t cure the error of the refusal to charge as asked. •. . •

This vie w disposes of the case as presented, and the . consequence is, the. judgment is reversed, and the cause remanded,