Washing v. . Wright , 30 N.C. 1 ( 1847 )

This was an action of assumpsit, in which the only question was whether one Jones, who was offered as a witness for the plaintiff, was competent. Jones was offered as a witness to prove the sale and delivery of the goods. The defendant objected that he was interested, and introduced one McCoy to prove his interest. McCoy stated the goods were ordered for him and the witness, they having agreed to go into business as copartners, but before their arrival they dissolved, and the goods were not received by them. The witness Jones was then introduced, under the directions of the judge, whereupon (2) the defendant insisted on examining him as to his interest, which the judge permitted, and on the examination of the witness he stated the ordering of the goods, as aforesaid; the failure of himself and McCoy to go into business; that thereafter he and the defendant entered into copartnership and purchased the goods of the plaintiff, and received them. The witness stated he had paid for half of the goods, and did not consider himself further liable, though he had no discharge. There was no other evidence of the copartnership, nor of the purchase, than that derived from this witness. The defendant moved to exclude the witness for interest. This was refused by the judge. The witness was introduced in chief, proved the sale and delivery of the goods to the defendant and the witness, and the copartnership of the witness and the defendant; thereupon a verdict was rendered for the plaintiff. A rule for a new trial was had and discharged, and a judgment on the verdict, from which the defendant appealed. We are of opinion that the two cases cited by the plaintiff's counsel show that the decision of the judge was right.Blackett v. Weir (11 Eng. C. L., 257) establishes that, where in assumpsit for goods sold and delivered, to which the general issue was pleaded, a witness called by the plaintiff to prove the defendant's liability admitted on the voir dire that he (the witness) was jointly liable as a partner, this did not render him incompetent, for if the plaintiff recovered the defendant would have contribution, and if he failed he might sue the witness for the whole, and the latter may then claim contribution (3) from the defendant. Bayley, J., said, "the only difficulty arises from his proving a partnership with the defendant"; but his (the witness;) testimony would not prove that in any other action. In Cummins v. Coffin, 29 N.C. 196, it was held that in an action against two partners the plaintiff may introduce the testimony of a third partner, not a party to the record, though he could not be compelled to give his testimony.

PER CURIAM. Judgment affirmed.

Cited: Street v. Meadows, 33 N.C. 133.