Livingston v. Pittsburgh & Steubenville Railroad ( 1859 )

The opinion of the court was delivered by

Woodward, J.

— As this was a suit against a surviving partner, it was necessary for the plaintiff to prove á joint contract.

And, inasmuch as the building of the plaintiff’s railroad was not within the scope of partnership objects and purposes, one partner could not make himself the agent of the firm, for the purpose of subscribing to the stock of the company. Hence, it was necessary for the plaintiff to prove not only a subscription by one of the partners, but assent thereto by the others.

Assent, however, might be implied from circumstances, and the first question that arises is, whether the evidence which the learned judge submitted to the jury, was such as a jury might reasonably imply from it a subscription by Samuel, with the assent of Peter.

That Samuel subscribed in the name of the firm for 140 shares, was scarcely contested, and was conclusively proved by his report, as a commissioner to the governor, wherein the fact is set forth under his hand and seal.

The organization of the company, Samuel’s active participation therein, the newspaper notices to stockholders, and the election of directors, were acts of public notoriety, which could scarcely escape the attention of Peter, while the payment of instalments out of partnership funds, could only have been made without his knowledge, by fraudulent practices, and such are not alleged.

From all this the jury might well imply assent, for if Peter had knowledge of the subscription, and of the payments thereon, and did not dissent, it was strong evidence of assent, which, if once given, either before or after the subscription, ratified it forever.

The evidence was submitted to the jury, in proper terms, by the judge. Because it tended to the conclusion sought to be established, it was competent and relevant, and it having convinced the jury, the defendant is bound to be satisfied.

Another ground of defence was, that the subscription was conditional.

But the court instructed the jury that the plaintiff could not recover, unless the condition had been complied with or waived. There was a prior question, whether the condition, written on the margin of the book, was there when the subscription was made, but this also was referred to the jury.

Of performance of the condition, there was no evidence; but of the waiver of it, the whole history of the case afforded presumptions of considerable strength. The evidence that tended to affect both brothers with a waiver, was fairly submitted to the jury.

And so in regard to the calls. They were published in a Pittsburgh paper. The Livingstons lived in Washington county, and counsel think the notice of calls was necessarily insufficient.

But the fact that payments were made under these calls, was strongly persuasive of actual notice, especially against a firm of two members, one of whom was acting as a director. The law did not require publication in the county where the parties resided. Actual notice was found by the jury, and the statutory rate of interest followed, as a matter of course.

On all the points stated by counsel, the instructions of the court seem to have been prudent and proper, and under them, the case became one peculiarly for the jury. They have decided it, and left very little for review in this court; nothing, indeed, that calls for a reversal of the judgment.

The judgment is affirmed.