De Cordova v. Powter

The action was brought to recover moneys advanced to and for the defendants, and for commissions upon merchandise sold by the plaintiff. A verdict was on a former trial recovered in favor of the plaintiff, for the same cause of action, upon the construction then given by the court, to an agreement made between the defendants, for the carrying on and transacting of the business. But as, by this agreement the appellant was to be paid as a remuneration and in full for his services an equal half part of the net profits to arise from the business, it was considered by this general term upon an appeal from the judgment entered upon that verdict that it was erroneous and the judgment was reversed and a new trial ordered.

Upon the trial so ordered the plaintiff gave evidence of admissions and statements made by the appellant in which it was stated by him to and in the presence of the plaintiff that he was a partner in the business with the other defendant. Those statements are related to have been repeated from time to time. And while they were denied by the appellant, and to a certain extent he was supported in the denial by the heading of the letters written in the business stating him to be a manager, the question was still one for the decision of the jury as to whether the admission relied upon had been made, and whether the appellant in this manner held himself out, as a partner and obtained credit in that capacity for the moneys and commissions mentioned in the complaint. If he did, then under the well settled authority relating to dealings of this description, the appellant was liable for the indebtedness which was the subject of the action. Parsons on Partnership 2d ed.), 120-130.

Letters'were allowed to be read in evidence, written by the appellant to the other defendant, which, from their statements and tenor, also indicated that the relation existing between the defendants was that of an actual partnership. An exception was taken to the ruling of the court permitting these letters to be read, but it does not seem to stand upon any substantial foundation, for the letters tended to support the fact that the appellant understood his relation to this business to be that of a partner. And if he acted under that understanding, it increased the probability of the truth of the plaintiff’s evidence, that he did admit on different occasions that he was a partner in the business. The letters were used for no other object than this upon the trial, and to this extent they could well be considered by the jury. A statement of cash received and disbursements made was allowed to be given in evidence for the same purpose as the letters were received. It was not very important, but tended to indicate the manner in which the defendants were carrying on their business. And as a circumstance indicating its management it was rightly received by the court as having something to do with the probabilities of the plaintiff’s evidence.

The plaintiff was asked what, if anything, induced him to give credit to the Phosphate Company, or, to the defendants as a partnership. This was objected to as incompetent and immaterial, but the objection was overruled and the appellant excepted, and the answer was that he supposed they were perfectly solid, and that he meant Mr. Powter and Mrs. Ilabich. Then he was asked whether he supposed they were in partnership, that they were both principals, and the same objections were made to this question. The court allowed it to be answered, and the defendant excepted, and the witness answered, “Undoubtedly.” The questions were inartistic in form, but it is quite evident that the design with which they were asked was no more than to ascertain the belief of the witness, or a statement of what he may have relied upon in the dealings. And the answer which was made was an indication of the fact that he did believe the defendants were partners. It was not very-important that this answer should have been obtained from him, for it is evident from the other testimony given in the action, and the form in which it was commenced, that this belief existed in the mind of the plaintiff. And where that is a circumstance in the case the witness may be interrogated as to the state of his mind in this respect.

The ruling, excluding the answers concerning the lease which was mentioned, does not appear to be of the s.ightest consequence. The transaction, as it was indicated by the questions, appeared to have no bearing whatever upon the controversy between these parties

By the verdict of the jury the amount included in it does not appear to have exceeded the indebtedness accruing after the statements, relied upon as being’ made by the defendant, had been made that he was a partner in the business. No reason appears for interfering with the judgment, and it should, therefore, together with the order denying the new trial, be affirmed.

Van Brunt, P. J., and Brady, J., concur.