West v. Driscoll

Briscoe, J., delivered the opinion of the Court. This appeal is from a judgment, rendered in the Circuit Court for Worcester County, in favor of the plaintiff against the defendant, Edith E. West, for the sum of three hundred and fourteen dollars, with interest and costs. The suit wa® brought -by the plaintiff against the defendants, John G. West and Edith E. West, his wife, partners trading as; J. G. and E. E. West. The liability of the defendant, John G. West, was admitted and a judgment by confession against him was entered in favor of the plaintiff on the 4th of April, 1922, for the sum of $345.84, with interest .and costs.

The trial then proceeded against Mrs. West, the wife, and from a judgment recovered against her, on the 10th day of April, 1922, for the sum of $314, she has taken this appeal. The record, it will be seen, contains sixteen bills of excep1tious, fourteen of which relate to the ruling? of the court on the admission of evidence, and the fifteenth and sixteenth to the rulings on the prayers. ²⁰⁷ The principle defenses relied upon by the defendant, Edith E. West, and set up by her pleas to the plaintiff’s declaration in assumpsit, are first, that she and the other named defendant, J olm G. West, are not now and never have been partners, trading as J. G. and E. E. West, or under any other name or style, and second, that there is not now and never has been any firm or partnership composed of this defendant and the other defendant, John G. West, trading as J. G. and E. E. West, or any other name or style. The law applicable to tbe facts of this, case is well established by authority, and is thus, stated in Fletcher v. Pullen, 70 Md. 205 . The ground of liability of a person as. partner, who is not so in fact, is that he has held himself out to the world as. such, or has permitted others to do so and, by reason thereof, is estopped from denying that he is. one as against those who have, in good faith, dealt with the. firm or with him as a member of it." And whether a defendant has so held himself out or permitted it to be done, is in every case a question of fact and not of law.

Waring v. Nat. Marine Bank, 74 Md. 278 ; Lighthiser v. Allison, 100 Md. 103 . The first, second and third exceptions were taken to certain questions asked the witness Sudler, assistant cashier of the Bank of Somerset, Princess Anne, Md., regarding certain deposits made in that hank, to the credit of an account which had been opened under the name of E. E. West, and made on the 17th and 25th of August, 1920. The evidence sought to he introduced by the questions set out in these exceptions, was clearly admissible for the purpose of showing the connection of Mrs. West with the business conducted under the name of J. G. and E. E. West, and for the purpose of establishing her liability as a partner by reason of the course of business between them.

Fletcher v. Pullen, 70 Md. 205 . The fourth and fifth exceptions may he considered together, as they relate to the testimony of the assistant cashier of the Salisbury National Bank, concerning certain business transactions of tbe defendant E. E. West with that bank in 1916 ²⁰⁸ and 19l7j and the payment by her through cheeks to farmers for the purchase of produce during those years, and that she was engaged in buying produce, with her husband, at that time. There was no error in the ruling on these exceptions. Waring v. Nat.

Marine Bank, 74 Md. 278 . The admissions and conversations of the defendant Mrs. West with the witness Jackson, set out in the sixth bill of exception, were clearly admissible, as reflecting upon her connection with the business of buying produce and paying for it with J. G-. -and E. E. West cheeks. There was no error in the ruling of the court in admitting in evidence the checks drawn by the defendant E. E. West, in Augpst, 1918, as set out in the seventh exception. The testimony of the