Losee v. Mathews

Headnote

This was an action to dissolve a partnership alleged by plaintiff to exist between him and defendant S. S. Losee, and to compel defendant Matthews to account for the proceeds of a claim alleged to have been assigned to him by co-defendant, plaintiff’s said partner, to pay his individual debt, without the consent of plaintiff, and to pay plaintiff his proportion. Defendant Matthews denied the existence of the partnership.

Upon the trial plaintiff produced two written agreements, executed by himself and S. 8. Losee; one bearing date June 12, 1862, and the other July 26, 1865. The latter purported to create the partnership claimed by plaintiff. ' In it the former was referred to, and the relinquishment by plaintiff of rights alleged to have been acquired by him under it was the consideration for giving him a partnership interest. Among the witnesses called to prove the execution of the first instrument was one, Brachlebank. Defendant gave evidence by experts, paper makers and others, tending to show that the two contracts were executed at the same time upon the same sheet of paper, and claimed they were fraudulently got up to defeat the assignment to him. In rebuttal plaintiff recalled Brachlebank, and asked him if he had seen the first contract in 1862. This was objected to as’ cumulative, and the evidence was rejected. Held, error; that the evidence was proper in rebuttal.