Bill v. Porter

Williams, J.

The grounds relied upon, in support of the motion for a new trial, are, that the testimony offered by the defendants was improperly rejected, and that the charge was incorrect.

To determine the first question, we must take it as an admitted fact, that the witness was a partner ; a fact too often admitted, byythese defendants, to be contradicted by them ;— for although their declarations cannot affect the interest of the witness ; yet as it respects the defendants, the court must regard them as true.

That point being conceded, the question is, whether one partner, who is not sued, can be a, witness for those who are sued. It seems to me, that he is directly interested in the event of the suit. It is true, the judgment is not against him; nor does execution issue against him; but by virtue of that judgment, the partnership effects may be taken in execution, in the same manner as if all the partners had been made*’ defendants. All the partners must have the same interesl in averting this event. Besides, if the debt is, paid by the part ners who were sued, they will have a right to charge over lo the concern both the debt and costs of suit, as an expence to be borne by the firm. Of course, it lays a foundation for a charge against him, when paid by the other partners, in the same manner as if he had been a party to the suit. Hudson v. Robinson, 4 Man. & Selw. 485.

In Young v. Bairner, 1 Esp. Rep. 103. where a suit was brought for painting a ship, and one Whytock, who was a part owner, was offered as a witness, by the defendant, to prove that fact, Lord Kenyon field, that he could not be admitted to defeat the action, although he thereby subjected himself; for he was bound to contribute. And in Goodacre v. Breame. Peake’s Ca. 174. where'the plaintiff had proved, that the defendant and his brother William were partners, the same judge held, that the defendant could not call William to prove, that the goods were sold to him ; “ for he comes to defeat the action of the plaintiff against a man who is proved to be his partner; and by discharging the present defendant, he benefits himself, as he will be liable to pay a share of the costs to be recovered, by the plaintiff, in this cause.” 3 Stark. Er. 1084. These are but Nisi Prius decisions. They are, however, the opinions of a respectable judge, at different periods of time, and seem to be founded on principle.

It is said, however, that these are contradicted in Sturges v. Beach & al. 1 Conn. Rep. 507. It was there held, that a judgment by Sturges against Beach as surviving partner ot the firm of Norton Bush, was not evidence of the existence of the debt, so as to charge the executor of the deceased partner in a suit brought by Sturges against the executor of the deceased. But the court did not decide, that if the surviving partner had paid that judgment, and claimed the benefit of such payment against the estate of Norton, this judgment, would not have been evidence tending to justify a payment made by him under it. That argument was urged by counsel; and certainly, it is not contradicted, by the court; on the contrary, they say the judgment against Bush is proper evidence to prove the fact, that a recovery was had against him.

If a judgment can be given in evidence, by these defendants, for any purpose, he must be interested in the event. So in actions by the master, for the trespass of his servant, a recovery against the master for that trespass may be given in evidence to shew the amount recovered, though not to prove the injury. Green v. The New River Company, 4 Term Rep. 589.

It is said, that the interest of the witness is balanced. But if these defendants avoid this debt, upon the ground that they were not partners with Burrows, and that it was the debt of Burrows, or that the company never had the wool, it is difficult to see how the witness is ever to be liable for it, as a partner ; and if such is the effect, he must, if a partner, not only be interested, but deeply interested. Besides, he is interested in the costs; and whatever may be considered as the rule in Great-Bntain, on this subject, it is impossible for me to see why costs do not form as important an item of pecuniary interest as the same amount in debt or damages. In this state, it is a well settled rule, that an interest in costs will exclude a witness. Beach v. Swift 2 Conn. Rep. 269. 274. Barnwell & al. v. Mitchell, 3 Conn. Rep. 101. 105, 6.

It is said, that in Ward v. Haydon & al. 2 Esp. Rep. 552. Lord Kenyon permitted a co-defendant in an action of trover, who was defaulted, to be a witness. But he proceeded on the ground that he could have no interest in the event, not being liable for costs. That decision, if not overruled, has been received with great hesitation, both in England and in New-York. Chapman v. Graves & al. 2 Campb. 333. n. Bohun v. Taylor & al. 6 Cowen 313. 315. To make it applicable to this case, it must be shewn, that a dormant partner is not chargeable with the costs of defending suits against the ostensible partner.

But it is said, that the witness was released, and thus he became admissible. And it is certainly true, that one part-owner may release his claim upon another part-owner, so that the latter may be a witness for the former for labour on the common property. Young v. Baimer, 1 Esp. Rep. 103. So one partner may release a partnership debt; as in Bulldey & al. v. Dayton & al. 14 Johns. Rep. 387. But no case has been cited to show, that a release by one partner of another partner, will bar the right of a third. In the former case of the partner, it is according to the common course of business, that one partner should receive and discharge the debts due to the concern ; but not so the settlement or allowances of the accounts of the one partner against the firm. It is not according to the course of business, nor is it necessary for the ordinary business of a partnership, that one of the partners should have such a power. It would be an unnecessary and a dangerous power; and' has the sanction of neither practice nor authority. Here, one of several partners, without any consideration, or a mere nominal one, undertakes to discharge another partner, not from any existing debt, but a liability which may arise upon a certain contingency. This may bind the releaser, but no one else. It may operate as a contract, upon the part of the releaser, that the company shall not call upon him; but it amounts to nothing more than an executory agreement, on the part of Porter, to indemnify the witness against any demands for contribution on the part of the concern, but cannot affect the interest of those partners who are not parties to it. The release, therefore, did not restore the competency of the witness.

An objection is also made to the charge of the court. The plaintiff, at the time he delivered his wool, received a note, signed by the name of Daniel Barrows, jun., which, it is alleged, was the name of the firm. This note was negotiable; and Burrows himself died, soon afterwards, an utter bankrupt. Upon these facts, the defendants claim, that the original debt was extinguished; or at least, that that question should have been left to the jury. On the trial, the defendants requested the court to charge the jury, that the note was accepted, and operated as payment of the debt. In answer to this request, the court expressed to the jury its opinion, that it was not payment under the circumstances of this case.

As a general rule, one simple contract does not merge or extinguish another. “ It is clear, that a subsisting simple contract is not discharged or extinguished, by the acceptance of another simple contract, given by the same party, for the same consideration." Johnson v. Johnson, II Mass. Rep. 359. 361. Thus, a check at two months given for goods sold, was held to be no payment, it never having been accepted. Brown & al. v. Kewley & al. 2. Bos. & Pull 518. 524. Stedman v. Gooch, 1 Esp. Rep. 5. And an account stated, or a promissory note, is no bar to an action upon a simple contract. Rhodes v. Barnes, 1 Burr. 9. S. C. by the name of Rolls v. Barnes, 1 Bla. Rep. 65. And Lord Kenyon, in Owenson v. Morse, 7 Term Rep. 64.66. says, that if the defendant had agreed to; take the note in payment, and run the risk of its being paid, that would have been considered as payment; but without such agreement, the giving of such note is not payment. And in Sheehe v. Mandeville, 6 Cranch 253. 264. Ch. J. Marshall says, it is not denied, that a note, without a special contract, would not, of itself, discharge the original cause of action; and then goes on to show, that it is otherwise, by agreement of the parties.

It is true, that in Massachusetts, a negotiable note has been held to extinguish a simple contract; but this distinction is treated, by the courts in that state, as a departure from the common law. Maneely v. McGee & al. 6 Mass. Rep. 143. Johnson v. Johnson, 11 Mass. Rep. 359.

In New-York, it is said to be an extinguishment sub modo; and their courts hold, that unless the plaintiff produces and cancels the note, he shall not recover on the original cause of action. Holmes v. De Camp, 1 Johns. Rep. 34. Burdick v. Green, 15 Johns. Rep. 247. This seems to be a reasonable rule; and had it been objected, at the trial, that the note was not produced, I think it would have been proper to have said to the jury, that as the note was not produced, and might be outstanding in the hands of a bona fide holder, they had a fair right and ought to presume, that it was received in payment. But as this formed no part of the objection to the plaintiff’s claim in the court below, which the plaintiff might then have obviated, if it had been then made, and as it is shewn, that Burrows died utterly insolvent, I do not think, that this ought to be considered a sufficient ground for a new trial.

Upon the question whether it should have been submitted to the jury, there seem to have been no facts, on which to found a claim to the jury, that the note was received in payment, other than the fact that it was received for the wool, and that Burrows was insolvent. The question therefore was, whether in point of law, these facts could of themselves prove payment; and the court was called upon to express its opinion upon facts, which seemed to be admitted. Of course, the defendants have no reason to complain, unless they can show that opinion to have been incorrect. Having failed in that, and in proving that the witness was admissible, they are not entitled to a new trial.

The .other Judges were of the same opinion.

New trial not to be granted.