SALINAS CITY BANK, Respondent, v. GEORGE W. DE WITT, Dependant, and WILLIAM DE WITT, Appellant, 97 Cal. 78

Harrison, J. The plaintiff seeks to establish a joint liability against the defendants for the amount of an over-draft at its bank. The making of the over-draft was by the defendant George De Witt, and the plaintiff seeks to hold the defendant William De Witt liable therefor by showing that a partnership relation existed between the two.

The complaint, which is unverified, alleges “that the defendants are indebted to the plaintiff, on account of moneys had and received by them from the plaintiff at their special interest and request, in the sum of $865,” and “that the amount of the said indebtedness is the balance of an account had by the defendants with the plaintiff, wherein the defendants deposited money with the plaintiff and drew money from the plaintiff, and the said sum is the balance of the said account, consisting of what is called an over-draft, .and interest thereon.” To this complaint the defendant William De Witt made .a general and specific denial.

The case was tried by the court, judgment was rendered against him, from which, and also from an order denying his motion for a new trial, he has appealed.

It was essential for the plaintiff, in order to fix the liability of William for the acts of George, to show that a relation of partnership existed between them, or that by virtue of some express or implied authority, George was the agent of William in making the over-draft; and in order to establish this relation, several witnesses were permitted to testify on behalf of the plaintiff to certain declarations made by George, in the absence of William, that William and he were partners. ' The appellant duly objected to this testimony, but his objections were overruled, and these rulings of the court are now assigned as error.

The admissibility of such evidence was before this court in an action against the same defendants (Vanderhurst v. De Witt, 95 Cal. 57), and it was there held to be a settled rule of law that such evidence is incompetent to establish the fact of partnership; and upon the authority of that case the judgment and order denying a new trial herein must be reversed. The respondent appears to concede that the admission of this testimony was error, but urges that it was an immaterial error, for the reason that there was other evidence before the court sufficient to sustain its finding upon this issue.

We cannot, however, accede to this proposition. The fact that appellant held such relation was controverted both by the pleadings and at the trial, and the evidence offered in support thereof, aside from the acts and declarations of George, was chiefly circumstantial, or of matters from which such relation might be inferred. The appellant himself testified: “I know George De Witt.

The only relation I ever had with him was, I let him have my thrashing-machine, machinery, horses, plows, wagons, harness, etc., and he was to carry on the thrashing and farming business, and pay all expenses, and pay me for the use of my property one half the net proceeds.” If this was true, then, as was held in Vanderhurst’s case, the relation of partnership did not exist between them.

In any view of the case, there was a very sharp conflict of testimony upon the issue, and “in such a case all the evidence upon that point becomes material, and the introduction of any incompetent testimony is presumed to cause an injury to the opposite party, and we cannot determine the weight which the court below gave to this testimony in reaching its conclusion upon this controverted point.” (Smith v.

Westerfield, 88 Cal. 383.) The fact that the court received the testimony after proper objection had been made to its introduction raises the presumption that it believed it entitled to consideration, and we must assume that it did give it some weight in determining the issue. As was said in Smith v. Westerfield, 88 Cal. 383: “If the respondents believed that this testimony of the witness was unnecessary for the purpose of establishing their case, they should have declined to introduce it after the objection had been made thereto.

They cannot now, after insisting upon a ruling in their favor, and introducing the testimony, say that the error was harmless.” The judgment and order denying a new trial are reversed. Paterson, J., and Garoutte, J., concurred.