Currier v. Silloway , 83 Mass. 19 ( 1861 )

Bigelow, C. J.

It was competent for the plaintiff to prove the existence of the copartnership by the separate admissions of each of the defendants. Such proof could only affect those who were shown to have made the admissions. But if the plaintiff could prove that each defendant had acknowledged the existence of the copartnership which he sought to charge, he would thereby make out his case against all. In the present case, it does not appear that the evidence admitted by the court was allowed to have any operation beyond an admission affecting only the party who was proved to have made it. We cannot now presume, in the absence of any statement to the contrary in the bill of exceptions, that the evidence was admitted or used for any illegal or illegitimate purpose. Collins v. Stephenson, 8 Gray, 441. Day v. Moore, 13 Gray, 522.

There can be no doubt that the writ in the action in favor of the alleged copartnership against the insurance companies was very strong evidence of an admission by the defendant Silloway. It contained his affidavit that the firm, composed of the very persons whom the plaintiff sought to charge in this suit, was in existence.

The written agreement made by the attorney in that suit is of more doubtful competency. But it seems to us to be the admission of an agent, made while acting within the scope of his employment, and as such competent evidence against his principals. It was therefore admissible as against Silloway, because there was evidence to show he was one of the firm in whose favor that suit was brought; and also against Poor, the other defendant, because he is shown to have received the proceeds of the verdict rendered in said action in pursuance of the agreement.

It is no objection to the competency of this evidence that it tended to show the existence of the firm some months prior to the date of the note in suit. The fact that such a firm then existed was proof bearing on the issue; and, if there was no evidence of its subsequent dissolution, would lead legitimately to the inference that it continued until the note declared on was given. Exceptions overruled.