Beall v. Poole

Weisel J., delivered the opinion of this Court. The appellants, with John Howarth and George Hutton, ⁶⁵⁰ were jointly sued in the Circuit Court for Allegany County, and declared against as partners under the name and style of Howarth & Hutton, for money'payable, goods sold and delivered, money paid, money lent, and work done and materials found. The appellees, plaintiffs’ below, were partners under the name of Poole & Hunt and they so declared. No time was alleged in the declaration, and the suit was instituted on the 3d of April, 1860.

The defendants had all been returned “ summoned,” and all appeared by attorneys, except Howarth, whose personal appearance was entered by order of Court. After continuances, Hutton suffered judgment against him, and afterwards and upon trial, a verdict was rendered in favor of the defendants, which, upon motion, was set aside and a new trial granted, on the ground of the repugnancy of the verdict to the judgment confessed by Huttón, the defendants having been sued and declared against jointly. On the new trial Beall & McCullough, two of the defendants, had leave to amend the plea, and each pleaded that he was never indebted as alleged, on which issue was joined. The trial proceeded and the defence was conducted by said Beall & McCullough, who resisted the efforts made by the plaintiffs to fasten upon them responsibility as co-partners with Howarth & Hutton, for the articles in the account produced in evidence and sought to be recovered.

Whatever irregularities- may-appear in the proceedings, no question arose upon them. The whole controversy was as to the . liability of the two defendants, Beall & McCullough, or either of them, in the action. The verdict and judgment were for the plaintiffs, and this appeal has been prosecuted by the said Beall & McCullough from the various rulings against them, embraced in the twelve exceptions taken by them in the record. The first exception was abandoned in the argument.

The plaintiffs offered the two letters in the second exception, with a statement to the Court that they would ⁶⁵¹ give in evidence, in connexion therewith, articles of agreement showing a partnership among all the defendants in the cause, and that it existed among them all prior to the 8th day of September, 1859. The Court, upon this promise, allowed the letters to go before the jury, and not upon the ground that they were evidence in themselves of the partnership. The defendants could afterwards, if the connexion with the other proof of partnership to be adduced failed, move the Court to withdraw the letters, and then take their exception to the action of the Court if' refused. The Court committed no error in allowing the letters to be read when offered in the manner proposed.

Articles of co-partnership made the 17th November, 1859, with other proof, having been offered by thé plaintiffs and gone in, they then further offered the paper in the third exception, dated September 29,1859, and admitted to be in the handwriting of the defendant Beall. It is complete with the exception of the signatures of the four parties named therein, (the defendants,) and an attesting witness, and is expressly entitled a memorandum of an agreement made that day to be finally made and entered into at some future day between them. Its admissibility was objected to by the defendants, but the objection was overruled. As an item of evidence to show Beall’s intention to become a partner at a date prior to that in the articles of agreement given in evidence, the paper offered being in the handwriting of said Beall, we think it was properly admissible, but only as affecting Mr. Beall.

The bills offered in the fourth exception and allowed to be put in evidence by the plaintiffs were admitted to be in the handwriting of Hutton, and were announced to the Court as offered only as evidence of partnership against Hutton. The fact that Hutton had confessed judgment for the claim and thus admitted the partnership, did not preclude the plaintiffs from showing by any further testi ⁶⁵² mony Ms connnexion with it, as a co-partner. The suit was against the four jointly, and it was the privilege and duty of the plaintiffs to establish by competent proof the connexion of each one with the firm. This was all that was proffered to be done, and to this extent and for this purpose the testimony was clearly admissible.

Its introduction could not prejudice the rights of the other parties, defendants. The trial proceeding, the plaintiffs offered in evidence an unsigned paper, admitted to be in the handwriting of said Beall, and described as articles of agreement between Hutton, Beall & Co. (of Allegany county, Maryland, and Boston, Mass.) and Samuel Mattick, of Preston county, Virginia, dated “this ■-■ day of November, 1859.” It proposed to exchange certain lands of the partnership, which had been purchased by Howarth, and describing them, with Mattick for certain other lands containing cannel coal, and for certain mining privileges. Its admissibility was objected to, but allowed by the Court, and to this ruling the fifth exception was taken by the defendants. It was admissible, as another item of proof against Mr. Beall, in whose handwriting the paper was admitted to be, and as cumulative evidence of his membership of the firm, the paper could not be ruled out.

Tibbetts, a witness for the plaintiffs, having been examined in chief, proceeded, on the cross-examination, to state that “ there were complaints made by Sowarth & Sutton, by letter, of the defectiveness of the luorh.” To this statement the plaintiffs objected, and the Court refused to permit it to go before the jury as evidence ; and we think rightly. The offer was to prove by parol the contents of a letter, not produced or for the production of which no notice appears to have been given. This disposes of the sixth exception. The defendants’ seventh exception was taken to the exclusion by the Court of portions of evidence taken by ⁶⁵³ them under a commission issued to A. W. Boardman, Boston, under which John Howarth, one of the defendants, was examined as a witness.

To some of his answers, and portions of others, the plaintiffs filed objections, and they also objected to the admissibility of all the testimony returned under the commission, for reasons set forth in the exception. The Court ruled the objections good to the seventh interrogatory in chief and Howarth’s answer thereto, and also those to the answers to the 8th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 20th, and 21st interrogatories in chief, and those to the answers to the second, third, fifth, and sixth cross-interrogatories. To this ruling, this exception was taken. The paper referred to in the seventh interrogatory, was the one exhibited with the sixth, and proved by the witness as having been executed by tbe parties whose names were signed to it.

The seventh interrogatory then proposed to inquire “ whether or not there was any verbal understanding and arrangement made between the parties who signed it, and at the time it was signed, as to when the same should be binding and go into effect, and if so, what it was.” Before disposing of this interrogatory and the answer to it, the defendants’ statement to the Court of what they intended to prove in the progress of the case in relation to that paper, and that this testimony was offered in connection with it, should be considered. That statement was, as found on the 59th page of the printed record, that the articles referred to, were written by the defendant Beall, with the understanding among all who signed them that he was not to give them up or be bound by them, until he should he satisfied by a schedule of the debts of Howarth and Hutton, that their debts did not exceed $3,000; that Beall did so hold it until the schedule was produced, and it being largely over $3,000, he promptly gave notice to the other parties to the agreement, that he would not give up the ⁶⁵⁴ paper or permit it to go into execution, and that he never did give it up, until he made it a part of Howarth’s testimony. The object of the proposed proof was then not to explain or contradict hy parol the written terms of an agreement, that was in operation and acted upon, but to show that it was a,paper executed- at one time, but to be held in the nature of an escrow not to be delivered or go into effect as to one of the parties, Beall, (who prepared it and beld it in his own close possession,) until he should have produced to him, from two of the parties, an exhibit or schedule of their indebtedness, and if that exceeded a certain amount, the paper was not to be binding upon him. There is no rule or principle of law forbidding a paper thus to be executed and held, and the fact, if it exist, could therefore be shown as evidence to prove that the partnership did not in fact exist among all the parties until the condition, upon which the paper was to take effect, was complied with.

With this proffer we think the answers to the seventh, eighth, tenth, and eleventh interrogatories, and the second, third, fifth, and sixth cross-interrogatories, should have been permitted to be read to the jury as evidence. Also the answer to the twentieth interrogatory, as that is explanatory of the witness’ own act, and the production of the letter referred to was not necessary, as its contents were not the subject of inquiry. But the answer to the twenty-first interrogatory was properly rejected as hearsay, even if Hutton’s declarations could otherwise, under the circumstances, have been given in evidence to affect the other defendants. The answer to the seventeenth interrogatory was not admissible without the paper of cancellation therein mentioned ; and we think also that the answers to the twelfth, thirteenth, fourteenth, fifteenth, and sixteenth interrogatories were properly excluded.

Looking to the drift of the interrogatories themselves and the answers as responsive thereto, they either relate to mat ⁶⁵⁵ ters irrelevant, or to the contents of the schedule of indebtedness, and as its amount became a material fact, of which the paper was the best evidence, it ought to have been produced to the Commissioner or its absence properly accounted for. The paper referred to in the eighth exception of the defendants is not in the record, and we cannot, in its absence, pass upon this exception, or do otherwise than affirm it. Having proved by Nelson Beall certain facts as detailed in the record, the defendants then offered to prove further