Ernest v. Wible

Opinion bv

Berber, J.,

This suit was brought to recover the amount due for coal and wood furnished to defendant and another person engaged in drilling an oil well and for hauling done for them whilst so engaged. The plaintiff sought to recover from the defendant alone, upon the ground that the contract was made with him as an individual, and that he promised to pay the amount due. The defense was that the contract was not the contract of the defendant as an individual, but that it was a partnership or firm contract made by the defendant on behalf of the firm. This was the only point at issue between the plaintiff and defendant. There was no substantial dispute as to the amount due. The plaintiff testified that he knew there was a partnership and he knew that his work and material were furnished for the benefit of an operation in which the firm was engaged. The defendant testified that there was a partnership and that the debt was contracted by him in the name of and for the benefit of the partnership; he also called the other member of the partnership who testified substantially to the same effect. Not satisfied with the admission of the plaintiff that there was a partnership and that he- knew it, and with the testimony of the defendant and the other member of the firm to the same effect, the defendant further offered in evidence' acts of the members of the firm out of the presence of the plaintiff as further evidence of the existence of the partnership. The offer of the proof of those acts was excluded by the court below and the propriety of this ruling is raised by the assignments of error.

We are well satisfied that the exclusion of this evidence was proper. There is no doubt of the general rule that the acts and declarations of the partners may be admitted in evidence against them in a suit where the issue is whether there was a partnership or not. Further discussion of this question is unnecessary. Cleaver v. Hilberry, 116 Pa. 431, and Thomas v. Miller, 165 Pa. 216, are sufficient authorities to justify the exclusion of this offer.

Even if wrong as to this we would not reverse on account of the refusal of this proof. The proof was offered to prove a partnership. The defendant did prove this, first, by the admission of the plaintiff himself, and second, by the testimony of the defendant, and the other person alleged to be a partner. With such proof before the jury it is clear under the authorities that a refusal to allow further proof to the same effect would not be ground for reversal. Where the court below rejects proof of a certain fact which it assumes to be true in the charge to the jury, or where the party whose proof has been rejected has not been injured by the rejection, because the fact which he offered to prove has been otherwise proved in the trial, the rejection of such offer, even though erroneous is not ground for reversal: Evans v. See, 23 Pa. 88; Ormsby v. Ihmsen, 34 Pa. 462; Coates v. Wallace, 4 Pa. Superior Ct. 253; Jacoby v. Westchester Fire Ins. Co. of New York, 10 Pa. Superior Ct. 171; 1 P. &. L. Dig. of Dec. & Ency. of Pa. Law, 1050, Nos. 1597 to 1614 inclusive. We think that the existence of this partnership was so clearly established that even if the court below was wrong in not admitting further evidence of its existence it would not be ground for reversal. The court below must be permitted to have the power to decide whether a fact in a given case has been sufficiently established without requiring further proof when the existence of such fact is sworn to by both plaintiff and defendant. The case was submitted to the jury with a clear explanation of the exact point at issue between the parties. The jury was distinctly told that there could be no recovery if the contract had been made by the defendant in the name of and for the benefit of the firm. The jury found against the defendant’s evidence on that subject. There was sufficient evidence to justify their finding. It is not for us to say that it was wrong.

Judgment affirmed.