Phillips v. Purington , 15 Me. 425 ( 1839 )

The case stood over for advisement, and the opinion of the Court was prepared by

Shepley J.

The declarations of Temple were not admitted until after the jury had found from other testimony the existence of a partnership between the defendant and Temple in building the vessel. The partnership being first established, the admissions of one partner may be received to charge the partnership in relation to transactions during its existence. 6 Greenl. 41; 8 Greenl. 421.

It is contended, that they were not partners, but tenants in common of the vessel. Such is the usual relation of part owners, but they may become partners. 6 Greenl. 77 ; 3 Kent, 154. It appears from the case, that a partnership was denied, and that the jury found its existence.

A party may waive his right to the production of testimony to prove a debt against him, by admitting it to be due from him ; and the admission of the debt of the plaintiffs by one of the partners dispensed with the production of the orders and other proofs.

The excluded declarations of Tern-pie were those made in his own favor, and they were of course correctly excluded under the circumstances stated in the case.

Proof of the existence of a suit, should be made by the production of the exemplification of the record; but where there has been a loss or a suppression, as in 7 Greenl. 236, other evidence may be admitted. There does not appear to have been such proof of loss in this case as to authorize it.

Exceptions overruled,