Neale v. McKinstry

Opinion of the Court by

Napton, Judge.

This was a petition in debt brought by Robert McKinstry, surviving partner of the firm of Robert McKinstry & co., against Daniel B. Neale, of the firm of Osburn & Neale. The note upon which suit was brought, is dated 21st Sep. 1836, and payable one day after date, for value received, and signed “ Osburn & Neale.” Defendant plead nil debet an¿ nQn esi jacium¡ verified by affidavit.

On the trial it appeared that Milton Osburn and Daniel B. Neale, were in partnership in the business of tavern keeping, in the town of Benton, in the State of Mississippi, during the year 1835, under the style of “ Osburn & Neale.” Robert McKinstry & John McKinstry were merchants in the same town, doing business under the style of “ Robert McKinstry & co.” John McKinstry died in 1836, and the note sued on was given by Osburn to close mutual accounts between the firm of Osburn & Neale and Robert McKinstry & co. The note was given in 1836, about eight months after Osburn & Neale had ceased to do business as tavern keepers in Benton.

There was evidence given by the plaintiff to show that np notice of the dissolution of the firm of Osburn & Neale had been given McKinstry & co., and that there had been mutual dealings between the firms during the existence of the partnership* The plaintiff offered to prove the execution of the note by the deposition of the subscribing witness, who testified, that the original note of which a copy was given in his deposition, was executed in his presence by Milton Osburn, one of the supposed firm of “Osburn & Neale,” and by him signed and delivered. This evidence was objected to by defendant, but was allowed to go to the jury.

The defendant proved that the business of tavern keeping was discontinued by Osburn & Neale, at the expiration of the year 1835, and that even during the existence of the partnership, Osburn had alone conducted the business. Neale being a citizen and resident of Missouri. It was also proved, that McKinstry was a guest of the tavern, both whilst it was conducted by Osburn & Neale, and after it came into the hands of their successors.

At the instance of the plaintiff, the court instructed the jury, that if they believe the note sued on was given by Milton Osburn, and that a partnership had previously existed between Osburn & Neale, it will be presumed to have been given for a partnership debt, unless the contrary be shown: that if Osburn & Neale were in the habit of dealing with the plaintiffs, and never gave any special notice of the dissolution of the partnership to the plaintiffs, they are liable on this note: that to render the dissolution of the partnership effectual, notice must be given of it to the world, and if no such notice was given, the firm may be bound by a contract made by one partner in the usual course of business, and in the name of the firm, with a person who had no notice of the dissolution, and that the mere discontinuance of the business of tavern keeping in Benton was not of itself sufficient notice of the dissolution of the partnership. Several other instructions were given, which seem to be to the same purport, and therefore not material to be noticed. The court also instructed the jury, that there was no evidence of any notice of the dissolution of the partnership ever given to plaintiff.

b¡^. a^3acJsJj cannot prove the execution 0f an jnstru. the fouhda-which is denied by by affidavit, tueinatri^ mont before him! at the time 0f ¿ep0fc not inspection, genuineness8 of his own handwriting, or that of the obligor.

At the request of the defendant, the court further instructed the jury, that the cessation of the partners in the business of tavern keeping, is evidence that the partnership in that business had ceased at that place, and if the jury believed from the evidence that the plaintiff knew of the cessation of the business at the time of the giving of the note, they ought to find for defendant. Several other instructions were asked by the defendant, which I deem it unnecessary to notice.

A verdict was found for the plaintiff, and a motion for a new trial was made and overruled.

It is assigned for error, that the circuit court admitted incompetent proof of the existence of the note, and gave im- , .... .. Whether a suosenbing witness can proper instructions. prove an instrument without having that instrument before him is, so far as I am apprised, a new question. That circumstance of itself would incline' this court against such rule of evidence, unless sound reason and general principles would require its adoption. The elementary works on evi-deuce no where give countenance to the admission of such proof, and no authority has been shown to authorise it.

■r . -i . , ,1 It is difficult to conceive how a witness proves the execution of an instrument which is denied by plea and affidavit, by swearing to the execution of another, which turns out upon inspection to be of the same tenor.

given by the sistent with tal£on>toge't^ er, constitute a correct exposition of pifcabTe toP" the case.^this reverse the “ causea single instruction, selfH» defective, "Whilst structions ed by quentinstruc-correct^ If the instructions glructíon ' or an instruc-true un-aI1. C0lp tmgencies, & is therefore t^n^ho" facts before ^ ppTied by the iu* struotions that follow,

The identical instrument attempted to be proved, is not before the witness, and without inspection he cannot swear . , „ , genuineness of his own handwriting, or that or the 1 Stark. Ev. 318.

It is not perceived, that any inconvenience or hardship is likely to result from the enforcement of the rules heretofore .... , . , . ,. , , . prevailing m relation to the attestation ot deeds, it the subscribing witness resides beyond the jurisdiction of the court, his hand writing may be proved, and all which is required by the law is, that the best evidence of which the matter is susceptible, shall be produced, and where that is impracticable, secondary evidence is let in.

Though the note upon which suit is instituted is required to be filed with the clerk, the courts will, upon suitable suggestions, give the party leave to withdraw the original by leaving a copy with the clerk. Numerous instructions were asked of the court, in this case, by both parties, some of which were refused and some given. If the instructions given are consistent with each other, and taken together constitute a correct exposition of the law applicable to the case, a reversal of the judgment cannot be asked, because a sjng]e instruction, taken by itself, is defective. Whilst erroneous instructions cannot be cured by subsequent instructions that are correct, a defective instruction, or an instruction that is not true under all contingencies, and is , ° tnerefore not applicable to all the facts before the jury, may supplied by the instructions which follow,

Examining the instructions of the court in this case upon these principles, the law of the case appears in the main to ^ave keen correctly expounded to the jury. If the note sued on was executed by Osburn after the dissolution of the partnership between him and Neale, to close a partnership transaction, the defendant was liable, unless special notice was given to McKinstry of the disso ution of the partner-orunIess McKinstry had actual knowledge of such dissolution. The fact, that the business of tavern keeping ceased in the town where both the plaintiff and defendant’s partner resided, was a circumstance proper to go to the jury, as evidence that McKinstry had actual notice of the dissolution of the partnership, and taken in connection with such other facts as might be proved on the trial, was a subject for their deliberation, to which such weight and importance might be attached as in their opinion it deserved, As the judgment in this case is to be reversed for the error first assigned, it is not deemed necessary to notice every struction which was given or refused bv the circuit court , , . . . ° . . ", , . , , only those oi the instructions given are believed entitled to particular animadversion. •

, If there be no testimony Ifpa^¡ouur°n a point, it is un-the°court fto fact.

The court instructed the jury, that the discontinuance of the business of tavern keeping was not of itself sufficient evidence of a dissolution of partnership, so far, I suppose, as . , , ’ r* ’ third parties were concerned, and that there was no evidence of any notice of the dissolution of the partnership ever given to plaintiff.

Whilst this court would be unwilling to reverse a judgment because of such instructions as these, where, in point of fact, they were true, and consequently could have been no wise prejudicial to the parties, we are of opinion that a court is not bound to give such instructions. If testimony is offered which is incompetent, let it be excluded; if com-i . ■ . , . „ petent, and it goes to the jury, the triors of the fact may give such weight to the evidence as they think proper. there be no testimony at all on a particular point, it is surely unnecessary that the court should inform the jury of that fact. They may be presumed to be as well apprised of as the court. Nor is it the province of the court to determine upon the weight of evidence, except, perhaps, on motions for new trial. If competent testimony has been submitted to the jury, the sufficiency or insufficiency of that evidence is to be determined by the jury.

Judgment reversed and cause remanded.