Assumpsit upon a promissory note, of which the following is a copy: "$936.99. Philadelphia, 29 August, 1838. Eight months after date, we promise to pay to the order of Hunn and Remington, nine hundred *Page 348 (476) and thirty-six dollars 99-100, value received, payable at the Commercial Bank, at Columbia, S.C. McKee, Young Co."
The plaintiff proved on the trial that McKee, Young Co. were doing business as merchants in Memphis, Tennessee, and that the note was given by Young for the company. They also proved that Young and Isaac and Lawson McKee, brothers of the defendant, were the ostensible partners, and they alleged that the defendant was also a partner, and that upon the dissolution of the concern he had taken a portion of its effects and brought them to this State where he resided. For the purpose of proving these allegations, they introduced the deposition of one Dickson, who stated, that upon the failure of the company, the defendant went to Memphis, and was soon after compelled to leave that place, in consequence of a writ being sued out against him, to charge him as a partner, or for intermeddling in the affairs of the concern. This deposition also stated that Lawson and Isaac McKee and Young were considered the persons composing the firm. The plaintiffs then introduced a witness who testified that on a certain occasion a few months before the date of the note, the defendant was at his store in Lincolnton, when the witness remarked to him that he understood his brothers were doing a fine business in Lincolnton, to which the defendant assented, and said he was concerned with them. They then introduced another witness who stated that the defendant was engaged in trading for clocks, and in the course of it, often went to Columbia in South Carolina about the time when the note was given. The defendant denied that he was a partner, or had interfered in any way with the effects of the concern. He read the deposition of a young man that was a clerk in the store of McKee, Young Co., which stated that the members of the partnership were Isaac McKee, Lawson McKee and Mr. Young, and that he knew of no other person that was a partner with them. The witness also proved the execution of the articles of copartnership between Isaac and Lawson McKee and Young, dated at Memphis, 31 April, 1837. The reading of this instrument was objected to by the plaintiffs, but (477) permitted by the court. The defendant then offered the depositions of the said Isaac and Lawson McKee, to show that he was not a partner. This was objected to by the plaintiffs, on the ground that they were incompetent from interest; but the court was of opinion that the testimony offered was against the interest of the witnesses, and permitted the depositions to be read.
The jury found a verdict for the defendant, and from the judgment rendered thereon the plaintiffs appealed to the Supreme Court. This is an action of assumpsit on a promissory note, given by McKee, Young Co. to the plaintiffs, and payable at the Commercial Bank, Columbia, South Carolina. The plaintiffs seek to subject the defendant to their recovery, upon the ground that he was a secret partner. In order to show this to be the fact, they proved by the deposition of a witness living at Memphis, in Tennessee, where the firm of McKee, Young Co. carried on business, that at the time the firm failed, the defendant came there and left in consequence of a writ having issued against him as a partner of the firm, but the same witness stated, that in Memphis the firm was considered as being composed of Lawson and Isaac McKee and Young. It was further proved by the plaintiffs that the defendant, upon being told at Lincolnton, (478) in this State, that his brothers were driving a good business, assented and said he was concerned with them. On the part of the defendant, to repel the charge of being a partner, it was proved by the clerk in the store of the firm of McKee, Young Co., that the members of that firm were Lawson and Isaac McKee, and Mr. Young, and that he never had heard of any other person being a partner. The defendant then offered the articles of copartnership between his two brothers and Young, which were objected to by the plaintiffs, but received by the court, and from them it appeared the only members, when the firm was originally formed, were the brothers Lawson and Isaac McKee, and Mr. Young. He then offered the depositions of his brothers, Isaac and Lawson, to prove he never had a partner. The reception of this testimony was also objected to by the plaintiffs, but the objection was overruled, and the testimony given to the jury.
The only objection on the part of the plaintiff, made in the court below, and which is now before us, is as to the reception of the evidence objected to. We see no error committed by the judge in either particular. We are at a loss to understand what objection there can be, to the reception of the articles of copartnership in evidence. The plaintiffs were seeking to charge the defendant as a copartner, and he certainly was at liberty to negative the charge, and how could he do it more effectually than by showing who were the partners; and what better evidence could he produce than the articles themselves, under which the partners went into and transacted business? Its reception did not preclude the plaintiffs from showing, if they could, that the defendant was a dormant partner, or had become a partner afterwards, and before the contract was made, upon which they sought to charge him. It certainly was admissible as evidence. Neither can we perceive any error in the judge in admitting the testimony of Lawson and Isaac McKee, to prove that the defendant was not a partner. We have carefully examined the cases to which our attention has been drawn in the course of the argument *Page 350 (479) here. The principle we extract from them is, that, in order to deprive a defendant of a witness, upon the ground of his being a partner, a partnership must be satisfactorily proved or admitted. Thus in Colyer on Partnership, 460, to which we were referred, it is stated, in an action ex contractu against one or more partners, a copartner cannot be admitted as a witness for the defendant. And he refers to Youngv. Baimer, 1 Esp., 103. In that case the defendant pleaded an abatement that he was joint owner with others of the ship, upon which the work was done, and to support his plea offered to call the person he alleged was co-partner. Lord Kenyon rejected the testimony. The defendant, by his plea, admitted that the witness was a copartner. In Birt v.Hood, 1 Esp., 20, the defendant alleged that the business, in the course of which the goods had been purchased, was carried on by his mother, and that he was a man servant, and offered to prove it by her. Adair, of counsel, objected that she was a partner, and therefore incompetent, "at all events some witness should be called to show she was not a partner." The Court, Eyre, Chief Justice, overruled the objection, that as the plaintiff had chosen to proceed against the defendant alone, he should not be permitted, by mere suggestion, to deprive the defendant of the benefit of her testimony. And so of the other cases. In this case the defendant did prove by the clerk and by the articles of agreement that he was not a partner of the firm of McKee, Young Co. The plaintiff had, to be sure, produced some evidence that he was; testimony going some what beyond a mere suggestion. The question was to the court, as to the admissibility of the testimony of the two McKees — how could the judge say the defendant was a partner with them? It would have been an assumption of the functions of the jury. All he could do was to admit the testimony and let the jury decide, as to its weight and credibility. When the plaintiff, therefore, in an action, wishes to object to the testimony of the witness, as being a partner with the defendant, he should ask the witness on his voir dire, whether (480) he is not a partner. If he admit it he will, of course, be rejected; if he deny it, it will be competent to the plaintiff to examine other witnesses to prove the fact, and it will then be a question for the jury, and not for the court, whether the partnership does or does not exist. Of course we are now alluding to cases, where the partnership is not admitted by the pleadings, or by the defendant in some other way. Colyer, 463, and the cases cited. We are of opinion that there is no error in the reception of the testimony in the Superior Court, and that judgment of the court is affirmed with costs.
PER CURIAM. No error. *Page 351