Owings ex rel. Owings v. Low

Dorset J.,

delivered the opinion of the court.

From the opinion of the County Court in the first bill of exceptions, we do not feel ourselves at liberty to dissent. The testimony given by the witness, except as it relates to his own entries in the day book, was of a character so vague and indefinite, that upon no sound principles of reasoning or inference, could the jury have made it the basis of a verdict for the plaintiffs. The court therefore were right in instructing them, of its legal insufficiency for the purpose for which it was offered. To establish the entries made by Dukehart, it has not, even in the argument been pretended, that it was available. To sustain those made by the plaintiff, it was so destitute of every thing like precision or certainty to any intent, that the court acted wisely in withdrawing it from the consideration of the jury.

The cases referred to from New York, in which, by a local usage, the books of accounts kept by creditors themselves, who are proved to have been of fair character, and correct in their dealings, are sufficient evidence before a jury to establish such accounts, it cannot be necessary to re*143mark aro of no authority in this State, where such an usage not only never existed, but is at war with all the acts of our legislature, in relation to proving accounts, and the uniform decisions of our courts of justice upon the subject.

In permitting the testimony objected to, in the second bill of exceptions, to go to the jury, we think the County Court erred. The declarations of Piet were made after the dissolution of the partnership; and consequently after all power had been withdrawn from him, either by word or deed, to create any new contract obligatory upon Owings, his former partner. The incompetency of partners to bind each other after dissolution, applies as well to cases in which they sue in the character of plaintiffs, as to those in which they stand in the attitude of defendants. Did the declarations of Piel assert the evidence of a partnership contract, of which, no other evidence had been previously offered, presents itself to our inquiry? Of this there can be no doubt. The only proof before produced to defeat the plaintiffs claim was, that the hardware charged in their account was not to be paid for by Low, but furnished by the plaintiff’s under a special contract, which secured to them, as its equivalent, an interest of three-fourths in the houses to be built upon Franklin street. Instead of relying on this agreement, the defendant offers the declarations of Piet made after the dissolution of the partnership, to prove a now and entirely different contract, by which the plaintiffs are said to have “ taken an interest of three-fourths of a house in the houses aforesaid on Franklin street,- and that the plaintiffs were to give said .Low hardware, for which this suit was brought for the said interest.” To support the opinion of the County Court, the case of Wood and others, assignees of Hussey and others vs. Braddick, 1 Taunt. 104, has been referred to, and that case, it must be admitted, does go the whole length of the decision made by the County Court.

But to the principle there established, we never can assent. The question was, whether certain merchandize had *144been consigned to Cox and Braddick, or to Cox alone, and without any other proof than a letter from Cox written four years after the dissolution of the partnership; it was held, that the consignment was made to the firm, and not to Cox. With as much propriety might it be insisted, that the declarations of an agent in relation to his agency, made long subsequent to the execution thereof, when his authority was functus officio, were evidence against his principal. If the letter of Cox had been the statement of some fact, in relation to a contract, into which it had been proved by other testimony, that he and his partner had entered; as for example, that a certain balance was still due, or that the contract on their part had not been complied with, the admissibility of the evidence might have been insisted on, with some plausibility; and it would not have been without analogies in the law to sustain it. As where two persons give a joint and several note; the admissions of one of them that the note was unpaid, or the like, would be evidence against both. But to permit one partner, after the dissolution of the partnership, by his simple declarations, to impose upon his former co-partner any contract which he in said declarations may see fit to state, as having originated anterior to the dissolution, appears to us a solecism in the law, and productive of consequences so ruinous and unjust, that if sanctioned, no prudent man would ever form a co-partnership. That such a principle does not prevail in Maryland, is settled by the decision of this court, in Ward vs. Howell and others, 5 Harr. and Johns. 60.

In New York, the doctrine, that the admissions of a partner after dissolution, as to transactions during the partnership, are not evidence to bind the other partners, is put to rest by numerous decisions; and they draw no distinction between such admissions, when made of a contract of which they are the only evidence, and where made in relation to a contract substantiated by other testimony. Baker vs. Stackpole, 9 Cowen 433, and the cases there referred to.

*145It is said however, that no matter whether the admissions of Piel bind Owings or not, they are admissible against him who made them, and are sufficient to bar his recovery; and it being a joint action at law, there cannot be a separate judgment in favor of one of the plaintiff’s.

In refusing to permit the defendant to set up such a defence, we think the County Court, under the circumstances of this case, were clearly right, Long before the declarations offered in evidence were made, Piet had for a valuable consideration, assigned all his interest in the cause of action to his co-partner. To permit him afterwards, by his simple declarations or admissions to defeat such claim would be a fraud upon Owings, which nothing but an imperious obligation to submit to some inflexible principle of law, would induce us to tolerate. None such exists in this case. Courts of common law have long since recognized to a limited extent, for the purposes of justice, the interests of the assignees of legal dioses in action; and by a summary equitable jurisdiction exerted on motion, they will protect those assignees, against such acts or admissions of their assignors, as would operate in fraud of their rights. This protection is afforded by refusing to permit the defendant to avail himself of the defence thus furnished him, whether attempted to be asserted in the form of a plea, or by way of evidence under the general issue. As authorities for such a practice, see Frear vs. Evertson, 20 Johns. 142. Jones vs. Witter, 13 Massa. 304. Jenkins vs. Brewster, 14 Massa 291. Legh vs. Legh, 1 Boss. & Pul. 447. Jones and Matthews vs. Herbert, 7 Taunt. 421. Hickey vs. Burt, 7 Taunt. 48. Skaife and Caris vs. Jackson, 3 B. and C. 421.

It has been contended, that the case of Thomas’ Exec'r vs. Denning use of Page, 3 Harr. and Johns. 242, was a conclusive authority, that no such practice existed in this' State. But such an inference is not warranted by that ease, whatever may have been the opinion of the reporters on that subject. The judgment no doubt rested on the *146fact, that the nominal was the real plaintiff, there being no evidence that the chose in action had ever been assigned.

To evade the force of this necessary and wholesome ex-evcise of equitable jurisdiction by courts of common law, it has been insisted, that the essential ingredient to warrant its exertion is wanting, to wit, a previous notice of the assignment to the defendant. But such notice under the circumstances of this casé, is wholly immaterial. The want of it has subjected him to neither detriment nor inconvenience ; he has done nothing in ignorance, which he would not have done with full knowledge of the assignment.

The inadmissibility of the evidence was pressed upon another ground; that Piet having no beneficial interest in the controversy, he could have been called as a witness, and therefore his declarations were inadmissible, not being the best evidence of which the nature of the case would admit. But from this position we must dissent. The plaintiff upon the record at common law, cannot, unless he voluntarily waive his privilege, be compelled to give testimony for the defendant. Such a voluntary waiver, he, the defendant,was neither bound to have anticipated nor accepted. Indeed, if the decision before cited from 20 Johns, is to be respected, Piet could not have been received as a witness, but by the assent of Owings, the cestui que use. The competency of the testimony offered, stands unaffected by this objection.

Wc concur with the County Court, in their opinion, in the first bill of exceptions, but dissenting from that, in the second, we reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED'»