Cody v. Cody , 31 Ga. 619 ( 1860 )

By the Court. —

Jenkins, J.,

delivering the opinion.

This was a statutory action, brought upon a note signed “Cody, Roberts & Co.,” against three persons, respectively named Cody, Roberts & Rogers, who- are alleged to constitute the firm represented by that name and style. Cody & Rogers made no defence, Roberts plead non est factum, and upon the issue presented by that plea, the case (quo ad the liability of Roberts), turned. The jury rendered a verdict in favor of Roberts, and counsel for plaintiff below moved for a new trial on the following grounds :

• That the Court erred in rejecting the testimony of the defendant Rogers, offered by the plaintiff to pro-ve the liability of Roberts, on the ground that the witness had an interest, adverse to his co-defendant Roberts, which made him incompetent.

That the Court erred in rejecting, when offered as evidence, by plaintiff, the exemplified copy of the record of a suit brought by one Reid, against the same defendants on a note signed with the same firm name, after the date of the note now sued on, wherein judgment was obtained against all the defendants; and also in rejecting the note so sued on; plaintiff at the same time, stating to the Court that he expected to connect with that documentary testimony, evidence that the defendant Roberts, paid that judgment. That the Court erred in charging the jury, that if after weighing all the evidence relied upon by plaintiff’s counsel, as conflicting with the testimony of the witness Hundley, and with the position that the partnership had been dissolved, prior to the date o-f the note in suit, they believed the witness Hundley, they ought not to find against the defendant Roberts. The application for a new trial was refused, and each ground overruled. To these several ruling's of the Court below plaintiff excepts.

1. There were three defendants, two of whom, Cody & Rogers, made no- defence; their liability was not contested. By the verdict o-f the jury, the liability to pay the note w.as fixed upon those two-, the defendant Roberts being exonerated. But the plaintiff offered Rogers, one of those two-, as a witness to establish the liability of Roberts, co-extensive with his own, and that of the other non-resisting defendant. Had this testimony been admitted, and had it satisfied the jury, that in law, Roberts was equally liable with the others, that verdict would have been rendered against the three. How would that change in the verdict have affected the interest of Rogers, the witness? As the record now stands the two defendants, Cody & Rogers, are liable inter se, each for one-half the debt. In the other result (that sought by the testimony of Rogers) the three defendants would have been liable inter se, each for one-third the debt. Was it his interest to reduce his liability from one-half to one-third the debt? In legal contemplation it certainly was, and therefore the ruling of the Court below, excluding his evidence, was correct.

The exemplification of the record in the case • of Reid vs. these defendants, the rejection of which, is the grievance of the second exception, does not appear in the brief of evidence. Not being a record between the same parties, but offered as evidence to establish a fact, which the plaintiff insists was in issue in both cases, it becomes important, in the adjudication of this point, to know what issue, or issues, were made in that case, and this we can not know without a view of the pleadings — an inspection of the record. We therefore decline to decide this point because not properly presented in the record before us.

2. The remaining exception is to the charge of the Court, regarding the effect of Hundley’s testimony. The Court very fairly directed the attention of the jury to so much of plaintiff’s evidence as conflicted with Hundley’s testimony; and having done so, charged them that if, notwithstanding this conflicting evidence, “They believed Hundley, they ought not to. find against RobertsThis, is equivalent to saying, that taking the testimony of Hundley, per se, it was sufficient, if the jury believed him, to exonerate Roberts. Certainly no view of the question more favorable to the charge of the Court can be taken; and in this view we consider it.

The evidence establishes the fact that a copartnership had existed between the three defendants, under the firm of Cody, Roberts & Co., anterior to the execution of the note in suit. That the note was made by one of the firm in the firm name, is not disputed. Roberts sought to evade liability by proving a dissolution of the partnership.prior to the date of the note, and Hundley the witness upon whom he relies.

Does Hundley directly and in terms prove a dissolution of the partnership ? On the contrary, he says, twice, he does not know that that partnership was dissolved. Does he, then, testify to any fact from, which the dissolution necessarily, results as an inference of law? The defendant, Roberts, insists that he does, and relies upon this portion of the testimony briefly stated, viz.:

That early in i860, the witness boug'ht from the defendant, Roberts, his interest in the stock of goods, held at that time by Cody, Roberts & Co., and formed a copartnership with Cody & Rogers, under the firm of Cody, Rogers & Co., which last firm carried on a trade in the same store previously occupied by Cody, Roberts & Co. That the last mentioned firm never afterwards sold goods. That in the transaction ^between witness and Roberts, witness did not purchase Roberts’ interest in the accounts, notes and assets of the firm of Cody, Roberts & Co. That Cody, Rogers & Roberts continued to use the back room of the storehouse for the purpose of collecting and paying debts, and winding up the business, in which each participated — each making entries in the books.

This evidence simply establishes the fact that at a given time, the firm of Cody, Roberts & Co., ceased to buy and sell goods — had no common property in any stock in trade as distinguished from other property. But it is apparent they had a common interest still in the fruits of that trade; that they jointly possessed all other assets of the firm; that they all participated in the collection of debts due them, and in the payment of debts due by them; that they had equal access to, and control of the assets and books of the firm. Now, a partnership, after the firm cease to buy and sell goods, may well be, and often is, continued for the purpose of winding up. They often borrow money in the firm-name to facilitate the winding up.

We think, therefore, the evidence of Hundley was insufficient to exonerate Roberts — that there was error in the charge of the Court below, and for this cause reverse the judgment.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, on the ground that the Court erred in not granting a new trial upon the third assignment of error in the motion for a new trial, viz.: That the Court erred in charging the jury, that if, after weighing all the evidence relied on by defendants’ counsel as conflicting with the testimony of Thomas S. Hundley, and with the position that the partnership has been dissolved, they believe the testimony of said Hundley, they should find for the defendant Roberts; this Court holding that the testimony of said Hundley does not show a dissolution of the partnership styled Cody, Roberts & Co.