Hobart v. McCoy , 3 Pa. 419 ( 1846 )

Rogers, J.

There is no valid objection, that we can perceive, to the admission of the deposition of George H. Small. For, although taken in another cause, it is between the same parties, and for the same matter, viz., the note now in dispute. In the action of account render, this item, among others, was claimed as money advanced by McCoy for a partnership, which it was alleged, and afterwards conceded, to have existed, between McCoy and Hobart, It, therefore, comes within the words and spirit of the act of the 28th March, 1814, an act further to regulate proceeding in courts of justice. But it is said to be defective, because the notes referred to in the deposition are not produced or identified. But it is sufficiently identified by naming the parties, the amount of the note, and the time payable, viz., ninety days after date. The object of the testimony is not so much to prove the execution of the papers, as that there was a note or notes of that description, discounted by the Harrisburg Bank, and proceeds passed to the credit of Hobart. In Petriken v. Collier, 7 Watts & Serg. 392, it is said to be better to attach the note or document referred to, to the deposition or commission, and to authenticate it by some mark put upon it by the commissioner ; but it is nowhere said, that this is essential to its validity, for where it is identified and particularly described, it may be given in evidence notwithstanding.

But we are by no means satisfied with the instruction of the court, that the parties, by their agreement, disavowed the partnership, and treated it as if it had never existed. That as Hobart received all the money got from the bank, and McCoy paid $1000 to the bank, Hobart would be indebted to McCoy, for so much money paid to his use. If the contract be as stated, we agree that the conclusion to which the court arrived, that the plaintiff was entitled to recover, was inevitable; but the intention of the parties to the agreement, does not appear in a written paper, which the court alone can construe, but it is collected from all the circumstances which surrounded the case : these the jury must find, and upon these they must decide. McCoy brought an action of accountr ender against Hobart, on a partnership said to exist on a railroad contract in Kentucky. Hobart a similar action against McCoy, on a transaction relative to some whisky of which McCoy was bailiff and receiver, as is alleged. In addition, Hobart brought suit against McCoy for money lent, and at the same time this action was pending. There were then various matters in dispute, this among others, when the parties came to an agreement to terminate them. To what extent the agreement went, and what it includes, is the difficulty. That the money advanced by the Harrisburg Bank, which is the subject in dispute here, was one of the items in the partnership account, seems to be conceded on all hands; and why is not that comprehended in the settlement, why is that exempted ? It seems to me to admit of great doubt at least, whether it was not the intention to put an end to all controversy of every description whatever, then existing and pending; and that by accident, or from some other cause, which is difficult to conjecture, no entry was made or express notice-taken of this suit. Indeed, no plausible reason can be assigned, at least none occurs to me, why this suit was brought at all, unless under an apprehension that the plaintiff might fail in proving a partnership, and the defendant might plead the act of limitations. On the whole, we think, justice requires that this case should be remanded, and that the jury should be permitted to decide upon the nature and extent of the agreement. Was it, as the court below suppose, their intention to assert that no partnership then existed, or ever did exist, and to remit the parties to their original rights ? or was it, as we are inclined to believe, their design to put an end to all disputes, this among others, by a compromise of intricate, perplexed, and harassing controversies ?

Judgment reversed, and a venire de novo awarded.