Carlton v. Coffin , 28 Vt. 504 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

The first question in the case is, had the county court competent testimony before them, tending to prove that Abraham Adams was one of the partners of the Ludlow Woolen Mill Company at the time of the execution of the note, which bears date the 12th of March, 1845. We see no objection to the admissibility of any of the evidence admitted by the county court. Its weight was entirely with that court. The evidence went to show that on the 16th day of December, 1843, all the defendants in this suit, including Abraham Adams, who styled themselves “proprietors of the brick factory in Ludlow,” entered into written articles of agreement to transact business under the name of the “ Ludlow Woolen Mill,” and appointed G-. S. Griffin their general agent, and gave him authority to sign notes, &c. Abraham Adams signed this agreement with the others; and the case finds that after the expiration of two months his name was erased from this agreement for the reasons alleged in the bill of exceptions, and the question of fact was whether, notwithstanding this, he continued one of the company in interest, down to the giving of the note in question. The plaintiff was entitled to prove any facts'which had a tendency to show a continuation of interest in Abraham Adams in the concern. We see no objection to the proof that Abraham Adams held a deed of an undivided portion of the factory property, followed up with the other testimony. The bill in chancery referred to in the exceptions, was brought in the month of December, 1847, in the name of Abraham Adams and the others, as the alleged owners of the factory, &c ; and the bill was sworn to by Abraham Adams. We think the facts stated in the bill, and which may be referred to, had a direct tendency to show a continuing interest in Abraham Adams, in the concern, notwithstanding the erasure of his name from the written articles of agreement.

The writ which was given in evidence was procured by Abraham Adams, and it alleges that all the defendants to this suit were the joint owners of this woolen factory ; and the object of the suit was to recover damages done to their factory privileges. We think this was competent proof, equally with the bill in chancery.

The fact that Abraham Adams took an active part in advising about, and in making the repairs upon the mill, for which the note in question was given; and also in the business of the mill, is just what we should expect, if he continued to have a joint interest in the concern; but otherwise, not, unless he was made the agent of the concern, and this was not pretended.

In respect to the plea of the statute of limitation, the fifty dollars was indorsed on the note the first of June, 1846, and the suit was commenced within six years from that date. The exceptions find that Shepherd Adams, one of the company, was their agent for making disbursements, &c; and that, as agent of the company, he paid the fifty dollars; and the fair intendment is, that it was paid out of the joint funds of the company. This is not to be treated as a case where a payment is made by an individual member of a firm ; but it was a payment by the entire firm on their joint account, and out of their joint fund. It is not within the provision of the act, which declares that the payment of one joint contractor shall not affect the liability of the other contractors, so as to deprive them of the benefit of the statute of limitation.

Judgment affirmed.