Little v. Ferguson , 11 Mo. 598 ( 1848 )

Napton J.,

delivered the opinion of the Court.

This was an action of assumpsit against Ferguson, Hardy & Williams. The suit was discontinued as to Hardy & Williams. On the trial, the plaintiff proved by the deposition of a witness, that there was a firm in Ky. of Ferguson, Hardy & Co., of which the defendant, Ferguson, was a member; and then offered a deposition, which stated, that the deponent was in February, Í841, a Commissioner of the Barren Circuit Court, and as such made a settlement with Little ; that Hardy, one of the firm of Ferguson, Hardy & Co., was present, and that in the settlement the firm fell indebted to Little in the sum of $544 86; that Hardy on several occasions, since the said settlement, h.ad admitted the above sum to be ustly due to Little by the firm of Ferguson, Hardy & Co. This deposition the court excluded. The plaintiff thereupon took a non-suit, and afterwards moved to set it aside. This motion being overruled, the case is brought here by writ of error.

It is admitted, that the' acknowledgment or admission of Hardjf would bind Ferguson, if made during the existence of the partnership, and that if made after the dissolution, it would not. The deposition does not show at what time the admission was made, or whether the partnership was then in existence or not. An inference might perhaps be drawn, one way or the other, from the language of the deposition ; but the Circuit Court was not satisfied with the proof. It was for that court to determine whether the existence of the partnership at the time of the acknowledgment was satisfactorily proved, before the acknowledgment was admitted against Ferguson. Harris vs. Wilson, 7 Wend., 57. There would have been no objection, I apprehend, had the court left the fact to the jury with proper instructions ; but the court having pursued a different practice, not objectionable in itself, there seems to be no necessity for an interference. The fact, which was a preliminary requisite to the admissibilty of the acknowledgments of Hardy ágaint Ferguson; was capable of plain proof; and as the proof offered was upon the most favorable construction, of a very unsatisfactory character, it is not seen why the judgment of the Circuit Court upon the point of practice should not stand.

Judge McBride concurring,

judgment affirmed.