The case appeared to be this: It was an action of debt upon a promissory note dated 21 November, 1835, signed "John Tomlin Co." It was proved that a commercial copartnership, under this name and style, between John Tomlin, William P. Waugh, and James Harper, existed in Ashe County for some years, and was transacting business as late as the summer of 1835. At what time it was dissolved did not distinctly appear. A witness stated that his impression was that a dissolution took place in September, 1835. It was also proved that John Tomlin was the active partner in the said concern; that he made all the purchases and attended to the sales, and that the signature "John Tomlin Co." was in his handwriting. It did not appear that any notice of the dissolution was ever given in any gazette or otherwise. A witness also proved that the plaintiffs had inquired of him, previous to the making of the note, whether Waugh and Harper were members of the firm of "John Tomlin Co.," to which he answered they were understood to be; and further proved that he, the witness, had been repeatedly inquired of before and once since the date of the note, (594) by the plaintiffs, as to the standing of the members of the said firm. The defendants exhibited in evidence articles of copartnership between John Tomlin and John Hardin. It did not appear that this firm ever transacted any business, nor was it known to exist in the neighborhood which the articles pointed out for its location. The goods for which the note sued upon was given were packed in Charleston, directed to John Tomlin Co., and conveyed into Ashe County.
When the jury were called and about to be impaneled, the counsel for the defendants offered that John Tomlin should confess a judgment in the action for the full amount of the principal, interest, and costs. This the court refused to allow. In the progress of the trial the defendant Tomlin was offered as a witness by the other defendants to prove that he told the plaintiffs, at the time of giving the note, that the old firm of "John Tomlin Co." was dissolved, and that a new one of the same name and style, but composed of John Tomlin and John Hardin, had been formed. The court deemed the witness incompetent, and he was excluded. The presiding judge instructed the jury that the law implied a power in any member of a firm, associated generally for transacting mercantile business, to sign notes in the name of the association for the purchase of goods; and if the jury found, upon a consideration of the facts, that the defendants were thus associated at the time of the execution of the note, that the plaintiffs knew the firm so formed, and none other of the same name, and gave the credit to the defendants; then they should find a verdict for the plaintiffs. If there had been a dissolution of the firm, and Waugh and Harper had withdrawn from *Page 446 it at the time of the execution of the note, then it was the duty of the defendants to give notice to such as were in the habit of dealing with their firm that they had withdrawn, and to all others by advertisement in some gazette or otherwise. And that if the necessary notice had not been given, and the jury should find further that the plaintiffs had no knowledge of the fact in any way, but trusted the defendants, they would still be liable, and the jury should so find. But if they found (595) that the necessary notice had been given, or if the plaintiffs had knowledge of the dissolution at the execution of the note, they would find for the defendant. Or if the jury believed that the plaintiff, when he took the note, had knowledge of the firm composed of Tomlin and Hardin, and trusted that concern, or, having such knowledge, took without inquiry the note of that concern, they should find for the defendants. The counsel for the defendants asked the judge to instruct the jury that if they believed that Tomlin intended to give the note of the firm composed of Tomlin and Hardin, they should find for the defendants, which the judge refused. The counsel further objected that the plaintiff had misconceived his action; that it should have been assumpsit for the goods, and on that account he could not recover; and asked his Honor so to charge, which was also refused. There being a verdict and judgment for the plaintiff, the defendants appealed. It is an undoubted general rule of evidence that a party to the record is not to be permitted to give evidence in the case. So far as exceptions to this rule have been established, they must be followed; but it is dangerous to introduce new exceptions, because of their evident tendency to break down the rule itself. We find no such exception established as that here contended for by the defendants. There are nisi prius cases in which a defendant in an action of tort, who has suffered judgment to go by default, has been admitted a witness for the other defendants to prove them not guilty. Ward v. Hayden, 2 Esp., 552. Case before Baron Wood, cited 2 Camp. (note), 333. Whether these have established the exception in cases of tort is a question (596) which will be worthy of consideration when the determination of it becomes necessary. But no case has yet held that, in an action upon an alleged contract, a defendant who has suffered a default is an admissible witness for the defendants, who deny the contract. Independently of the general rule that excludes such a witness as a party on the record, there seems to us a ground of interest on which he ought to be excluded. Though offered for the purpose of disproving the *Page 447 liability of the other defendants, and though with us there may be a judgment against one and for others of alleged joint contractors, yet, when sworn, he is received to testify to the whole matter embraced in the issue. Under the general issue of non assumpsit or nil debet, it may be shown that the debt or demand has been released, or paid, either in whole or in part. The witness has an interest in establishing such a defense, for, although he has entered no plea, he must have the benefit of a verdict, diminishing the amount of the debt or demand claimed as a joint debt or demand of all the defendants.
The application made to the court, when the jury was about to be impaneled, to permit the defendant, who had not pleaded, to confess a judgment, was addressed to its sound discretion, and we have not the authority to supervise the exercise of that discretion. No objection has been taken to the instructions of the judge, and no error is seen in them.
PER CURIAM. No error.
Cited: Hyatt v. Tomlin, 24 N.C. 152.
(597)