Smith v. Wood , 1869 Md. LEXIS 109 ( 1869 )

Brent, J.,

delivered the opinion of the Court.

This is an action of replevin brought by the appellee in his own right, to recover certain goods .and chattels from the appellant. The pleas are non cepit, property in the defendant as administrator of William Smith, deceased, and property in William Smith in his lifetime. The verdict and judgment being against the defendant, he prosecuted his appeal to this Court.

In the course of the trial an unusual number of exceptions was taken, and as we are required by a special law to decide all questions raised upon an appeal, we will express our opinion upon each point presented by this very Voluminous record.

Tbe first, tenth, and fifteenth exceptions present questions which come within the discretion of the Court below. Under the repeated decisions of this Court, they are not matters subject to review upon an appeal.

The second exception is to the competency of the plaintiff as a witness. He is clearly not within the prohibition of the 2d section of the Act of 1864, ch. 109. The defendant is not sued as administrator or executor, but thq action is brought against him individually for tortiously taking and holding the property of the plaintiff. Although a contract between the plaintiff and his deceased partner may incidentally arise, it is not the subject-matter of the suit, and there is no reason, under the section alluded to, why the plaintiff is not a competent witness.

The testimony objected to in the third, fourth, eleventh, and fourteenth exceptions was admissible, as tending to show the plaintiff’s right to the possession of the property replevied. The fact that he was cultivating land in partnership with William Smith in his lifetime, is a íink in the evidence to establish such an ownership in the property replevied as would entitle him to its possession as surviving partner. It is not of so light and trivial a character, and so immaterial to the issues in the case as would have required or authorized its rejection by the' Court below.

We see no error in admitting the testimony objected to in the fifth and sixth bills of exceptions. The defendant, upon his cross-examination of the Sheriff, gave in proof that the plaintiff being present at the time the property was taken under the writ of replevin, “ claimed the property, and pointed out the goods and chattels which were replevied.” This certainly entitled the other party to offer in evidence all that was said by the plaintiff at the time, in reference to his claim of the property. The offer in testimony of a part of a statement or conversation, upon a well-established rule of evidence, always gives to the opposite party the right to have the whole.

The seventh exception presents a question wholly immaterial. The testimony excepted to is the statement of the plaintiff, that he had received from the Sheriff the property mentioned in the schedule. It may not have been admissible under the issues, but it is without the slightest injury to the appellant.

The eighth and ninth exceptions are taken to the offer to prove by the plaintiff as a witness, that all the property mentioned in the schedule was his property, upon the ground “ that it was not permissible to the plaintiff” to prove title to all the goods and chattels in the schedule mentioned, in gross, but that he must prove title to each of said goods and chattels severally.” We see no force in the objection. If the counsel for the appellant had a reason for requiring the witness to speak of each item of property separately, he could have accomplished his purpose upon cross-examination.

The eleventh exception is to the offer of the plaintiff” to prove by the witness, Hamilton, “ that William Smith, deceased, had told the witness that he, said Smith and the plaintiff, were farming the Webster place together as partners, in the spring of 1865.” The Court below was clearly in error in permitting this testimony to be given. It is within the rule of hearsay evidence, and should have been rejected. Smith was not a party to the suit, and the defendant had not offered any proof that he claimed under him, nor was his title the question at issue. The plea of the defendant “ of property in William Smith,” did not involve his title to the goods replevied, but had the effect only of casting upon the plaintiff the burden of proving his own title. Warfield vs. Walter, 11 G. & J., 80; Cumberland Coal Co. vs. Tilghman, 13 Md., 74.

The twelfth and fourteenth exceptions present objections to evidence, a portion of which was admissible. The statements testified to of Smith and the plaintiff are inadmissible, because hearsay; but the orders of Wood about stock, -and the circumstance of his being engaged together with Smith in ploughing in oats on the Webster place, are facts properly admissible as tending to establish a partnership.' The law is well settled, that if a portion of the evidence excepted to is admissible, the party excepting loses the advantage of his objection. Waters vs. Dashiell, 1 Md., 455; Emory vs. Owens, 3 Md., 178; Hatton vs. McClish, 6 Md., 407.

The testimony objected to in the thirteenth exception does not come within the rule of hearsay evidence. The orders and directions of the plaintiff, testified to by the witness, are acts of ownership over the property in dispute, and as such, were properly admitted by the Court.

The sixteenth exception was very properly abandoned.

The seventeenth and eighteenth exceptions present the question of the admissibility of the assessors’ books. The Court was right in rejecting the testimony under the decision in the case of Chew vs. Beall, 13 Md., 349, which is decisive upon the point.

The testimony offered by the defendant in the nineteenth exception was wholly immaterial, as tending to any issue in this case, and therefore inadmissible. We cannot perceive how the amount of debts exhibited in the Orphans’ Court against a party deceased, can have any tendency to prove the amount and description of property he owned in his lifetime.

The testimony offered in the twentieth, twenty-first and twenty-second exceptions, and rejected by the Court, is hearsay. It was an offer to prove what Smith had said, in his lifetime, to the several witnesses, and was inadmissible under the plainest rules of evidence.

The first prayer of the defendant, in the twenty-third exception, presents the question, whether the plaintiff can recover in this action property, to the possession of which he may be entitled, as surviving partner, without having declared as such. The only authority referred' to by the appellant’s counsel on this point, 1 Chittys Plea, 19, is in reference to actions on contract. ’ In actions of that sort, it is necessary to declare as surviving partner. The reason of the rule is, as argued by the counsel for the appellee, “ a supposed variance between the contract proved, and the contract laid.” 1 Saunders’ R., (6th Edit.,) 291, i. This rule does not apply to the present action. It is not founded upon contract, but is an action of tort. The question here involved is the right of possession. The proof of the right of possession is sufficient to enable the plaintiff to recover under the allegation in his declaration, and the quo modo of that right cannot be held to be a variance. We therefore think the prayer was properly rejected.

The first, second, fourth, fifth, sixth, seventh and tenth prayers in the twenty-fourth exception are directed to the plea of non cepit. The second, seventh, and tenth prayers were granted by the Court, and cover the whole law in the ease upon this point. There certainly was sufficient evidence to go to the jury, from which they might reasonably infer a taking of the property by the defendant. After it was appraised, it was placed by the defendant in the care and custody of Zimmerman, who thereby became his agent, and his custody was, in fact, that of the defendant. As the law was correctly given upon this point, in the instructions granted, it is not necessary to determine whether or not the first, fourth, fifth, and sixth prayers were properly rejected. It is well settled, that “ where several instructions are asked, and some granted, and others rejected, if those granted cover the whole ground, judgment will not be reversed, because some of those rejected wei*e proper to be granted.” Mutual Safety Ins. Co. vs. Cohen, 3 Gill, 459; N. Y. Life Ins. Co. vs. Flack, 3 Md., 341; Pettigrew vs. Barnum, 11 Md., 434; B. & O. R. R. Co. vs. Resley, 14 Md., 424; Keech vs. B. & W. R. R. Co., 17 Md., 32.

The third and ninth prayers present the question, whether the defendant should have been sued in his representative capacity as administrator. Clearly not. There is no tort alleged or proved to have been committed by the intestate in his lifetime; and if it were held that this action should have been brought against the defendant as his administrator, it would be holding the estate of the deceased liable for a tort, with which he had not the slightest connection.

The eighth and eleventh prayers present the question, whether a surviving partner can maintain replevin for partnership property against the administrator of the deceased partner. An action of replevin can he maintained by him who has the right of possession, and that the surviving partner is entitled to possession of the partnership effects is undoubted law. It is true, that he is tenant in common with the representatives of his deceased partner, but this “ tenancy in common exists, as to the effects of the partnership, only as- to property, and not as to possession.” Parsons on Partnership, 441. By which we understand the author to mean, that the tenancy in common exists as • to the beneficial interest, and not as to the legal title and right of possession. These are in the surviving partner. In Collyer on Partnership, sec. 129, it is said, “ Although for the purpose of encouraging trade, it is held that the harsh doctrine of jus accrescendi, which is an incident of joint tenancy at the common law, does not apply to the partnership property, yet on the decease of one of the partners, as the surviving partners stand chargeable with the whole of the partnership debts, the interest of the partners in the partnership property shall be deemed so far a joint tenancy, as to enable the surviving partner to take the property by survivorship, for all purposes of holding and administering the estate, until the effects are reduced to money, and the debts paid.” In Parsons on Partnership, p. 440, it is said, “ The death of a partner invests the surviving partners with the exclusive right of possession and management of the whole partnership property and business.” The representative of the deceased partner has never been held to be entitled to its custody and control, and he has no more right of possession than an entire stranger. Ve therefore think these prayers were properly refused by the Court.

The first, second and third prayers in the twenty-fifth exception ask the Court to instruct the jury that the plaintiff* cannot recover in this action, both for property claimed in his individual right, and for property claimed as surviving partner. We think he may recover any of the property replevied, to which he is able to establish by proof, satisfactory to the jury, his right of possession. The fourth prayer in this exception is disposed of by what has been said in regard to the eighth and eleventh prayers in the preceding exception.

The prayer in the twenty-sixth exception, and that in the twenty-seventh and last exception, are also disposed of by what has already been said.

The motion in arrest of judgment should have been granted by the Circuit Court. The verdict is not a general one. It is rendered only upon the issue joined on the plea of non cepit, and is silent, so far as we are informed by this record, as to the other issues. In this respect, it is*defective, and no judgment should have been entered upon it. Although this point was not made in the Court below, it is properly before us, notwithstanding the provision of the Act of 1862, eh. 154, that “ the Court of Appeals shall in no case decide any point or question which does not appear by the record to have been tried and decided by the Court below.” This Act is substantially the same as the Act of 1825, ch. 117, sec. 1, and it was decided in the ease of Charlotte Hall School vs. Greenwell, 4 G. & J., 407, that tbat Act did not apply to motions in arrest of judgment, because, on such motion, the whole record is brought before the Court. Morgan vs. Briscoe & Clarke, 4 Md., 273.

(Decided 2d July, 1869.)

As there was error in admitting the testimony objected to in the eleventh exception, and in refusing to grant the motion in arrest of judgment, the judgment of the Court below must be reversed.

Judgment reversed, and procedendo awarded.