Henry v. Willard

ByNüM, J.

This was an action against the defendant, as the surviving partner of R. F. Morris. The defendant denied that he was a partner when the causes of action arose, and the following issue, among others, was submitted to the jury to wit: “ Was the defendant a partner with the sa’d Morris at the time or times of said sales ?” Upon this issue the plaintiff offered much testimony tending to establish the partnership as alleged, and then introduced one Henry Malone, who testified that in 1872, the said Morris, while out on a ;t tour” purchasing tobacco, bought his crop, and at the time of the purchase remarked, “ that he had been considered broke, but he had a strong partner now in Mr. Willard, the President of the bank in Raleigh.” This testimony was objected to by the defendant, but admitted by the Court, and in that there was error. No principle of evidence is better established than that the declarations of a supposed partner are not admissible against the other, if made in his absence, unless the partnership is first established aliunde. It is true, in this case, that other evidence bad been previously given, tending to establish the partnership, and perhaps sufficient to authorize the Court to admit the declarations of Morris touching his acts and conduct under the partnership. Bnt this is something altogether different from admitting declarations, the natural and only apparent effect of which was to establish the fact itself of the partnership. This fact can be established only by evidence foreign to and disconnected from the declarations of the alleged partner. Declarations which presuppose the existence of a partnership are not competent to establish the partnership, and use to them for that purpose, is to substitute the effect for the cause. It is true that the same declarations which are incompetent generally, may be made competent specially, and for a particular purpose. But when declarations which are, by a general rule, inadmissible, are objected to, they will always be excluded unless the party ottering them brings them ont of the general rule by specifying the exceptional and special purpose for which they are admissible. If, for instance, the defendant had got in declarations of Morris that he was not a partner, it would have been competent in the plaintiff to offer Iris declarations that he was a partner, not, however, for the purpose of establishing the partnership, for which they would be inadmissible, but for the purpose of contradicting the other evidence. No such special purpose was avowed or necessary here, and it is evident that the declarations were introduced and used as a circumstance, among others, to establish the partnership. That was the single issue before the jury upon which it can be pretended that the declarations were offered in evidence. The general rule must therefore prevail, that the acts and declarations of a third person are not evidence against a party, unless such third person be his agent or partner, and the agency or partnership must be established before such acts and declarations are admissible. Grandy v. Ferebee, 68 N. C. Rep., 356 ; McFayden v. Harrington, 67 N. C. Rep., 29 ; McCombs v. N. C. R. R. Co., 70 N. C. Rep., 178 ; StenHouse & McCauley v. C. C. & A. R.R., 70 N. C. Rep., 542.

As we consider the declarations of Morris excluded by long and well established rules of evidence, we have not advertod to the objection that they are excluded by C. C. P., sec. 343, as being the declarations of a person since deceased. Nor is it necessary to examine any of the many other exceptions raised by the defendant, which, however, seem to prevent but little difficulty. For the error we have designated there must be a venire He novo.

Pbb CURIAM.

Venire de novo.