Foster v. Fifield , 29 Me. 136 ( 1848 )

Shepley, J.

The action was commenced to recover two sums of money, $75 and $25, alleged to be due to the firm of Foster & Gilman. In defence it was contended, that those sums were paid by Foster with the knowledge and consent of his co-partner Gilman, to the defendant in part payment of a promissory note, made by the firm of Lincoln, Foster & Co., to the defendant. Samuel J. Foster was one of the members of the latter as well as of the former firm. A verdict was found for the defendant.

It is insisted, that the written and verbal declarations of Samuel J. Foster, one of the plaintiffs, were not legal testimony.

Whether they were or not legal testimony must depend upon the relation, which he sustained to the cause. If, as contended, he was but a nominal party having no interest in the event of the suit, they were not legal testimony. If on the contrary he was a party, wrhose interests were liable to be affected by them, they were properly admitted. The paper signed by Foster and bearing date on February 4, 1846, shows, that the firm of Foster & Gilman had been dissolved, and that Gil-man was authorized to settle the affairs of the partnership, and to commence suits in the names of the partners. It does not transfer the interest which Foster had in the assets of the firm, to Gilman, except for the benefit of Foster, in payment of his liabilities to Gilman. Foster continued to be liable for the debts of the firm ; and to be entitled to have half of any surplus, that might remain after payment of the debts of the firm, and the debts due from Foster to Gilman, paid to him. His declarations would affect his own interest in that surplus. The admissibility of his declarations cannot be determined by the contingent character or by the magnitude of that interest.

It is further insisted, that the testimony offered to prove, that two notes were forged and were paid by Foster out of the funds of the partnership, without any charge therefor made upon the books of the partnership, was improperly excluded.

It is apparent, that such testimony could have no direct bearing upon the issue. It is alleged to have been admissible for the purpose of showing, that the books of the firm did not contain a correct account of all their transactions. If the fact alleged were admitted, that would not vary the rights of the parties. The purpose for which the books were introduced, was to show what charges were made upon them, and that Gilman might be presumed to have known, that such charges were made upon them. For this purpose, it was immaterial to inquire, whether the books were correctly kept or not.

The next alleged error is found in the instructions, that if satisfied, that the money was paid by Foster, from the funds of the partnership to the defendant, with the knowledge on his part, that it was taken from those funds, the defendant could not retain the money, unless they should be also satisfied, that Gilman assented to such payment. These instructions are said to be deficient, in not requiring that there should be a consideration for that payment, received by Gilman or by the firm. If a consideration on the part of the defendant were not sufficient, a person holding a note against one of the members of a firm, could not lawfully receive payment of it from the funds of the firm by the express consent of all the members of the firm. The law only requires it should be made by their consent and for a valuable consideration, which may consist in a benefit to one party, or in an injury to the other.

The instructions are alleged to have been erroneous in stating that Gilman’s assent to the payment might be inferred from the accounts upon the books, from the documents, and other testimony. The argument is, that they did not require such an assent to exist at the time, when the payment was made. But they do not admit of such a construction. They required, that the jury should be satisfied, “ that Benjamin P. Gilman assented to such payment.” This necessarily required that the jury should find, that he assented before or at the time of payment.

W. G. Crosby, for plaintiffs. Kent and Cutting, for defendant.

The counsel proceeded in argument to examine the testimony to prove the assent and to attempt to show, that it was insufficient to authorize such an inference; as if the Court had decided upon its sufficiency, and had committed an error in doing so. But counsel are in error in supposing, that the Court by the instructions withdrew the free consideration of that question from the jury by expressing any opinion upon it.

The counsel also entered upon a consideration of what might amount to a ratification of that payment by Gilman. It is unnecessary to consider that question, for it does not appear to have been presented at the time of trial ; nor do the instructions appear to have had any reference to it.

Judgment on the verdict.