Shaw v. McGregory , 105 Mass. 96 ( 1870 )

Colt, J.

1. It was proved or admitted that the defendants were residents of Connecticut at the time the notes in suit were given, and that they soon after left that state and went west. The testimony therefore of the plaintiff, and of the witnesses Shaw, Pinney and McGregory, as to not seeing the defendants in this state, even if it had no legal tendency to establish the issue, does not appear to have misled the jury or been prejudicial to the defendants. Richards v. Doe, 100 Mass. 524.

2. The exception to the admission of the deposition of Rice, with the hotel registers therein referred to, is not well taken. The books with the deposition were together inclosed, sealed up and directed to the clerk of the court by the magistrate, the envelope in which they were placed was opened by the clerk, and the contents were taken therefrom and retained by him, until introduced as evidence. This leaves no room to question the identity of these books, or to doubt that they are in the same condition as when produced before the magistrate. If not the best, it is one method of annexation, within the meaning of the statute, which requires the magistrate’s certificate to be annexed to the deposition, (Gen. Sts. e. 131, § 26,) and is not open to objection when the facts show that the security aimed at has been practically attained. In Savage v. Birckhead, 20 Pick. 167, it was held that a deposition, taken under a commission, which was not annexed to the commission, or the interrogatories, was sufficiently connected by the envelope and official seal, and as much so as if attached by a ribbon. In either case there might be fraud or mistake; but in the absence of any suggestion of it, the objection cannot prevail.

3. The ruling requested in regard to the effect of a residence of either of the defendants within this Commonwealth for the required time, upon the rights of the others, became immaterial by the finding of the jury that neither of the defendants had esided here.

4. The proposition, that a note given by a member of a partnership in the name of the firm, for the debt of a prior firm, composed of different members, would not be binding on the new firm, unless given with the authority or consent of all its members, was agreed to by the parties, and the trial proceeded on that ground. But the defendants insisted that the evidence here relied on was not competent or' sufficient in law to justify a finding that John C. Stanton authorized or assented to the giving of these rnfies. The judge declined so to rule, and submitted the question to the jury. We are of opinion that there was sufficient and competent evidence to justify the jury in finding the assent of all the members. John C. Stanton was present at the interview when a written statement of the plaintiff’s account was produced and the notes were given. The account was examined by the other members of the firm, and conversation was had in reference to it. The two notes were agreed to be given, and were then written, examined and signed. The interview lasted for an hour. John C. Stanton was in hearing all'the time, making no objection. This is certainly competent evidence of his intelligent approval of a transaction, in which it is hardly possible that he should not have known that he was interested. The facts, that he took no part in the conversation, that in the division of the partnership labors another member of the firm had kept the books and attended to the financial matters, and that he ordered none of the goods contained in the account, affect the weight of the evidence, and are proper for the consideration of the jury on the question whether they do show assent to an act which he knew the purport of. Nor is it sufficient reason for rejecting the evidence, that the account produced was made out wholly in the name of the last firm; the dates and items which it contained would sufficiently exhibit that portion which was the proper debt of the prior partnership. It does not appear that there was on the part of the plaintiff any intentional deception practised, or that any of the defendants were in fact deceived. It is true, that no instructions were given as to the legal effect of a misrepresentation of the plaintiff upon the alleged assent; but no specific instructions were requested upon this aspect of the case, and it is not to be assumed that the required assent, if obtained by misrepresentation, was understood by the jury to be sufficient. Such an apparent assent, under the instructions actually given, was not an assent within their fair meaning.

5. It is further objected that the jury under the instructions given were permitted to find for the plaintiff, if they found only that there was an agreement by which the second firm had assumed the debts of the prior firm; when there was not only no evidence in the case of such agreement, but if such an agreement in fact had been proved, it would still be necessary to prove the assent of all the partners to the giving of a negotiable note for such debt. No specific direction was requested in reference to the alleged deficiency of proof, and although there are cases where it is the duty of this court to set aside a verdict for an omission to give the instruction that there is no sufficient evidence, even when it was not requested, yet in such cases the want of evidence must clearly appear by the bill of' exceptions. Brightman v. Eddy, 97 Mass. 478, 481. There is no such clear want of evidence in support of this proposition apparent here. There was evidence that the defendants were the successors of the firm from which only one partner had retired, and this implies that they were severally hable for its debts; had taken possession of its assets ; and were continuing the same business in the same place. Under such circumstances, comparatively slight evidence would tend to the inference that they had assumed the debts of the old firm, and such evidence is found in the fact that the plaintiff’s account, which was presented and received by them without comment or objection, was wholly made out to the last firm, though containing items due from both concerns. Besides, we are not sure that the bill of exceptions reports all the evidence bearing upon this point.

As to the remaining part of the objection, it is plain that if, between the retiring partner or creditors, and the members who remain in the firm, an agreement is made to assume the outstanding debts, then such debts become the proper debts of the new firm, and the relation of the several members to them is the same as to other liabilities incurred in the business, and does not require their individual assent to notes given in payment.

6. The point that the giving of a promissory note was not incident to the peculiar business of this partnership was not made at the trial. The nature of the business was proved indeed, but it seems to have been for the purpose of showing that one of the Stantons had charge of the books, while the other superintended the quarry, as affecting their knowledge of the nature of the plaintiff’s demands. It is said that a partnership organized for quarrying stone, like one for mining or farming purposes, will not as incident thereto confer the power upon its members to make negotiable notes in the name of the firm. But such power may always be shown by express authority, or implied from the know» habits of business of the firm in question. If the suggestion now made had been made at the trial, the plaintiff would not have been deprived of an opportunity to meet it by additional proof, and we do not think it is now open to the defendants.

Exceptions overruled.