Where the question before the jury was whether or not one of the
defendants was a partner in a commercial firm, it was proper for
the court to exclude the declarations made by the defendant in the
absence of the plaintiffs.
Page 61 U. S. 126
It was also proper not to confine the attention of the jury to
declarations made at one particular time in the presence of one of
the plaintiffs, but to allow all similar declarations to be given
in evidence, so that the jury could judge of the entire question of
the existence of the partnership.
It was an action of assumpsit, brought by Patten and Lane,
merchants of New York, against the plaintiffs in error, merchants
of Fort Wayne, Indiana. The only question in the court below was
whether or not Swinney was a partner of Teller, the declaration
counting upon four promissory notes signed by Thomas B. Teller
& Co. Under the instructions of the court, a verdict was found
for the plaintiffs. The substance of the bills of exception is
stated in the opinion of the Court.
The case was submitted on a printed argument by Mr. Crawford for
the plaintiffs in error, and argued by Mr. O. H. Smith for the
defendants.
MR. JUSTICE McLEAN delivered the opinion of the Court.
It is an action of assumpsit on four promissory notes signed by
Thomas B. Teller & Co. A verdict was rendered, and a judgment
entered, for $2,719.40.
Certain rulings of the court on questions of evidence which were
made during the trial, and to which exceptions were taken, present
the points for consideration.
Evidence was given to prove the partnership of Swinney with
Teller, which was denied, and which was the only controverted fact
in the case. Thomas P. Anderson, a witness, stated that in April,
1852, he introduced Swinney to divers merchants in the City of New
York, including the plaintiffs, as a person wishing to buy goods
for Fort Wayne, as the father-in-law of Teller, and the capitalist
of the concern, which was not denied by Swinney. Several other
witnesses gave evidence conducing to prove that Swinney was a
partner of Teller, and had by his declarations and conduct at Fort
Wayne on divers occasions, in 1852 and 1853, held himself out to
the world as a partner of Teller, who was then doing business as a
merchant, and that Swinney had suffered Teller to hold him out as
such.
It was further proved, by the bookkeeper of the plaintiffs, that
Swinney was in New York in June, 1854, a period prior to the
extension of the notes sued on, and in conversation with
Page 61 U. S. 127
Patten and Lane, the plaintiffs, he admitted that he was a
partner of Teller & Co., in the house at Fort Wayne. About the
same time, two of the daughters of Swinney testified that their
father stated, at the Astor House, in New York, to Patten, one of
the plaintiffs, that he was not a partner of Teller.
The defendants then offered several depositions conducing to
prove that Swinney, on his way to New York, with Solomon D.
Bayless, to purchase goods &c., and to whom he said that he was
not to be a partner with Teller, who was his son-in-law, that he
intended to purchase a small stock to start him in business, but
that he had no further interest or connection in the matter. The
same statement was made by Swinney to several persons in New York.
Witness introduced him to a number of merchants in that city, and
to those persons he did not represent him as the partner of Teller.
This was before Thomas P. Anderson arrived at the city. At none of
these conversations does it appear that plaintiffs were present, or
either of them. Other depositions were offered to prove that on the
trial of one Michael Dougherty for larceny, at Fort Wayne, in
January, 1853, Swinney and Teller were both witnesses, in the
absence of the plaintiffs, and both swore that Swinney was not a
partner of Teller's. But the court, on objection being made,
overruled the depositions, which showed the declarations of Swinney
made to different individuals at different times, in the absence of
the plaintiffs, and also the oaths made by Swinney and Teller in
the criminal case stated, as incompetent, but the evidence of the
two daughters of Swinney was not overruled.
After the evidence was given and the argument of counsel closed,
the defendant's counsel requested the court to charge the jury, if
they believed from the evidence that in June, 1854, Swinney told
Patten in New York that he was not, and never had been, a partner
of Teller, the plaintiffs could not afterwards deal with him so as
to bind Swinney, unless proof were made of a new authority given to
him. But the court refused to give the instruction prayed for, and
said, if the jury were satisfied, from the evidence, that Swinney
was actually a partner with Teller in the establishment at Fort
Wayne, his declarations to the contrary to Patten, in New York,
could not relieve him from liability in this action.
An exception was taken to the instruction refused and to that
which was given.
The instruction given on the evidence before the jury was
proper. It was the province of the jury to determine the weight of
evidence before them. The instruction asked by the defendant would
have restricted this right, as it would have
Page 61 U. S. 128
thrown out of the case the evidence of the plaintiffs. The jury
might believe that the remarks were made to Patten by Swinney, in
the presence of his daughters, "that he was not, and never had
been, a partner of Teller, at Fort Wayne," and yet, from the
plaintiff's evidence, find them to be untrue. This statement is
represented to have been made in 1854, some two years after the
merchandise had been purchased. It is said this was prior to the
extension of the notes, but that is immaterial, as the partnership
debt had been long before incurred. No one can manufacture evidence
for himself in such a case. The judge treated the evidence fairly
by submitting it, with the other facts, to the consideration of the
jury.
The depositions which related to the declarations of Swinney, at
different times and occasions, that he was not a partner of
Teller's, were properly suppressed; they were not made in the
presence of the plaintiffs, or their agent, and of which the
plaintiffs could have had notice. The oaths said to have been made
on a certain occasion, by Teller and Swinney, belong to the same
category.
The existence of the partnership at Fort Wayne seems to have
been proved to the satisfaction of the jury. The firm was known by
the name of Teller & Co. This was the admission of a
partnership in their course of dealing, and if Swinney was not the
partner, it would have been easy to prove who was.
The ruling of the court in the admission of the evidence to the
jury, and the exclusion of that which was offered, was correct.
The judgment of the circuit court is affirmed, with
costs.