Vinal v. Burrill , 33 Mass. 401 ( 1835 )

Putnam J.

delivered the opinion of the Court. We will now consider the objections which the defendants make to the proceedings at the trial.

And first, as to the admission of the deposition of Zara Higgins. It was contended for the defendants, that sufficient notice was not given to the defendants’ attorney, and no notice to the defendants themselves, and that it was taken while this Court was actually in session.

It appears, that the notice to the defendants’ attorney of record, was received by him ten minutes before 11 o’clock A. M. on December 11, 1833, and the deposition was taken under the order obtained from the Court, at 4 o’clock, the same day. The deponent’s being bound to sea was the cause of the taking of the deposition. The attorney of record attended and filed fourteen interrogatories, insisting however that there had not been sufficient notice. And there was no suggestion, that the deponent did not immediately proceed to sea. Now' we are all satisfied, that upon these facts this deposition was properly received in evidence.

The objection of the defendant’s counsel against parol evidence to charge the defendants as owners of the brig Oracle, for the disbursements &c. relating to the voyages in question, we think cannot prevail. The register of the brig was in the name of Valentine ; but notwithstanding that fact, we think, that the plaintiff might prove by parol evidence that Valentine and the other defendants were owners pro hac vice, and were jointly interested in the voyages mentioned in the account of the plaintiff as ship’s husband.

It has been decided, that a hiring of a vessel may be proved by parol. Taggart v. Loring, 16 Mass. R. 336. Ships and other personal chattels may be sold and conveye'd by parol. The doctrine that a vessel may be transferred by parol while at sea, is recognised in United States v. Willings, 4 Cranch, 55. The property will pass by a parol sale ; but to entitle the purchaser to a new register giving an American character to the vessel, the act of Congress of December 31, 1792, (U. S. St. 1792, c. 146,) requires an instrument in writing. But for the purpose for which the parol evidence m the case at bar was offered, we are all clearly of opinion that it was competent.

It was objected also, that the plaintiff was permitted to prove, that one of the partners made acknowledgments after the dissolution of the partnership, touching the plaintiff’s claim now in suit, and that he gave directions to transfer Valentine’s separate account with the plaintiff to the debit of the firm, stating that it was all one concern. But this objection cannot prevail. The confessions of one partner after the dissolution of the partnership in relation to the concerns of the partnership are competent, though not conclusive evidence against a copartner, the joint contract being proved aliunde. This rule does not enable a partner, after the dissolution, to create a new debt or obligation. In regard to all contracts made before the dissolution, the joint liability continues after he dissolution. Cady v. Shepherd, 11 Pick. 400, and the cases there cited. This must be considered as the settled law in this State. The confessions offered in the case at bar, come under this rule, and were properly admitted.

And the objection, that this action could not be maintained because there was an outstanding debt not collected, cannot prevail, inasmuch as the plaintiff proposed to give credit for the same, and to have a judgment for the balance. Now we think, that if the plaintiff had proved by legal evidence, that the account now sued had been acknowledged by the defendants before the action was brought, the action ought not to be defeated by the receipt of the outstanding debt afterwards. The account as the plaintiff alleges, was presented, examined and passed under the revision of the defendants with the vouchers, not only without objection, but with acknowledgment of its correctness. If these facts were legally proved, the plaintiff would be well warranted in commencing his action for the final balance, as then appearing. If while the action was pending, the plaintiff has received something which was not expected to have been recovered when the accounts were so exhibited, we think that circumstance ought not to defeat the action, which was rightly commenced as aforesaid ; but that the plaintiff- might well be allowed to give credit and recover accordingly. It has no tendency to disprove the count upon the insimul computassent, which was indeed true, and final as the parties then supposed ; but it should be considered as an unexpected payment towards the balance acknowledged to be due at that time.

The objection made, that an account stated though not signed by the parties, might not be proved by the acknowledgment of one part)', cannot be sustained. It would militate against the rule upon that subject before mentioned.

But there is one objection made by the counsel for the deleudants, which must prevail. The defendants objected to copies of the accounts being received in evidence, on the ground, that the originals, being delivered by the witness to the defendants, were the best evidence, and that notice should have been given to the defendants to produce them on the trial. The report finds, that this objection was sustained on the trial, and thereupon the plaintiff produced the original books from which the accounts were taken. But the production of the original books did not cure the difficulty, nor meet and answer the objection raised. The plaintiff proposed to give evidence of the contents of a paper writing of accounts delivered to the defendants, and acknowledged by them to be correct. That was the original paper to which the defendants referred ; and we do not perceive but that they might well object to the evidence which the plaintiff offered, to prove the contents of the paper alleged to have been acknowledged, without calling on the defendants to produce the paper delivered to them. The mistake at the. trial was in considering the books as the original papers delivered to the defendants. But the fact was not so. The books were not put into the defendants’ hands, with the vouchers ; but an account was delivered to the defendants, with the vouchers, which they examined and acknowledged to be correct. What were the contents of that account ? It was that account to which the alleged acknowledgment of the defendants referred. That account became to the defendants an original paper ; and the plaintiff cannot legally prove the contents, by a copy, unless he should have called for and given reasonable notice to the defendants to produce the original one, which was delivered to them.

For this cause (we regret to say) the verdict must be set aside and a new trial granted. We regret it, because we have no reason to believe that the copy in the book was incorrect. But however that may be, the defendants have a legal right to object to the secondary evidence before they have been notified to produce the original

JVew trial granted