Folk v. Wilson

Goldsborough, J., delivered the opinion of this Court: The appeal in this case was taken from the ruling of the Circuit Court for Wasington County, in admitting the plaintiff’s evidence contained in the defendant’s first and second exceptions, and rejecting the evidence mentioned in his third and fourth exceptions; also in granting the plaintiff’s prayer; and rejecting the defendant’s second, fifth, sixth, seventh and ninth prayers, referred to, in the fifth exception. The points involved in the first and second exceptions, may he considered together, as both depend upon the question, whether the declarations of the appellant Smith to Amon Wilson, out of the presence of John Folk, the other appellant, and not communicated to him, could he offered to bind Folk. The appellants rely on 2nd Greenleaf on Ev., sec. 484, and Owings vs. Low, 7 G. & J., 129 , to sustain this proposition; and it may be conceded, as stated in tbe case referred to, “that the admission of one defendant- ⁵⁵⁰ is not evidence to charge another defendant with the fact of being a partner with him.” Yet when, as in this case, evidence had been offered by the appellee of the partnership, bysubmitting' to the jury the partnership notice mentioned in the record, which notice was prior to the declarations of Smith objected to, we find it expressly stated in Collier on Partnership, 454, that “as soon as evidence of the partnership is established, the acts, admissions and declarations of one partner, in matters relating to the affairs of the partnership, will be evidence against the firm.” See also 1 Greenleaf on Ev., sec. 198, and the authorities cited by the appellee in support of this proposition. In addition to the declarations of Smith, stated in the second exception, the witness testified to, facts within his own knowledge, which were clearly admissible, and the objection being general, it contravened the rule, that where any of the evidence offered is admissible and the objection goes to the whole, the objection is untenable.' The evidence in these exceptions was not offered to establish a partnership, but to show the course of dealing, and the incidents con^nected with the purposes of the partnership named in the advertisement.

This view is recognized by the Circuit Court, as will be seen by reference to the qualification of the Court at the conclusion of the second exception. The propriety of admitting this evidence is also sustained by the fact, that the receipts given for the wheat were in the partnership name, were found in the possession of the appellant Folk, and, upon notice, were produced by him and given in evidence before the examination of the witness Wilson. We therefore think the Circuit Court properly admitted the evidence contained in the first and second exceptions. The evidence contained in the third exception was inadmissible.

The course of dealing of the individuals named in this exception, could in no manner affect the appellee. It is ' but negative testimony, and there is nothing to show that the appellee had any knowledge of their deal ⁵⁵¹ ings with tbe appellants, nor did the dealings of those individuals constitute