Cronkrite v. Trexler , 187 Pa. 100 ( 1898 )

Opinion by

Mr. Justice Fell,

The rule of court which at the trial was held to relieve the plaintiff from proof of the partnership of the defendants, provides that in actions by or against partners, the partnership shall be taken to be admitted as alleged on the record, unless one of the defendants, before pleading, shall file an affidavit denying the existence of the partnership in relation to the subject-matter of the action. It was not error to hold that the rule applied to this case. The defendants were associated for the purpose of buying and selling land. They were sued as “ trading as the Byrn Mawr Land Association,” and were so described both in the writ and in the statement of claim filed. They were in fact, as to the enterprise in which they were engaged, partners, and were sued as such. An unincorporated association organized to buy and sell lands is essentially a partnership: Kramer v. Arthurs, 7 Pa. 165; Thomson’s Estate, 153 Pa. 332. The purpose of the rule is to relieve parties from the burden of making formal proof of matters not really in dispute, and that it was intended to include partnerships in particular transactions appears from the requirements that there shall be a denial of “ the existence of the partnership in relation to the subject-matter of the action.”

The letter of the plaintiff which was offered in evidence and excluded, was written by him two years before the deposition was taken, and to a person who was not a party to the transac•tion or interested in it. The right to discredit a witness by proof of contradictory statements without first calling his attention to them in order that he may have an opportunity to explain or reconcile them is a subject on which our decisions have not always been uniform, but it is now settled by the later cases that the question is one of sound discretion in the judge trying the case, upon the circumstances before him: Walden v. Finch, 70 Pa. 460; Rothrock v. Gallaher, 91 Pa. 108. In Brubaker v. Taylor, 76 Pa. 83, and Kreiter v. Bomberger, 82 Pa. 59, it is said that a different rule applies when the witness is a party, and that then his declarations out of court, as admissions, constitute independent evidence of themselves, and may be proved without first giving him an opportunity to explain. But under this rule the letter was not admissible, as it contained nothing in the nature of an admission against the plaintiff’s claim. In it he wrote that if he had known that a payment had been made on account he would not have brought suit. If the fact of a payment having been made had been in dispute, the letter would have been evidence, but credit had been given for the payment in the statement of claim, and there was no controvers}1, about it. As the letter neither contradicted any statement in the deposition nor showed an admission against the right to recover, it was properly excluded.

The judgment is affirmed.