Reuben H. Waller, Administrator of John A. Hall, vs. Elias Keyes, 6 Vt. 257

The opinion of the court was delivered by Williams, Ch. J. — The testimony on which the verdict in this case was taken is introduced into the bill of exceptions. The jury have passed upon the facts. The law on the subject is very simple, and we see no reason to disturb their verdict. The first question which has been presented is a question in relation to the variance between the declaration and the note given in evidence. This, however, has been abandoned in the argument.

It appears that the court having decided that the articles of partnership originally entered into by the defendant and others did not extend to the business of distilling, or authorize the purchase of a distillery, the plaintiff introduced testimony to prove that the defendant, Keyes, consented to the enlargement of the business originally undertaken by the firm, and to the purchase of the distillery. It appears that testimony to that effect was introduced, and that there was contradictory testimony. On this testimony the jury have decided.

It appears that the defendant offered testimony to show that he disclaimed participating in the purchase of the distillery. This was properly rejected by the county court. The plaintiff-was bound to prove affirmatively, that the defendant did consent to the purchase ; and if there was proof to this effect, the defendant could not by his declarations of disclaiming to have any thing to do with the distillery, create testimony to be used in a time of need.

After the testimony was given, the defendant requested the court to charge the jury as stated in the bill of exceptions; and the question is, whether he was entitled to such a charge. I would here remark, that it is the duty of the court to decide on all the questions of law which arise in the course of the trial, but that requests to charge on supposed facts, or on points particularly stated, and which are not called for by the testimony, are not entitled to much consideration; as a charge, following the request, would frequently mislead and confound a jury.

So far as such requests are calculated to remind the court of the questions which are proper to be presented to the consideration of the jury, they are entitled to attention ; but from my experience, I am convinced, that to follow a written request, and charge a jury on each particular request, and on the supposition that certain facts may exist or be in evidence, is more apt to confuse and to distract their attention from the points which really arise, than to aid them in their deliberations.

In the case under consideration, it was surely unnecessary to request a charge on the first particular, as that question had already been decided, and the whole trial had proceeded upon the ground that the position was correct. The second request assumes as a fact the whole subject in controversy. If the debt was a partnership debt, and it must be so found or the defendant would not be liable, it was not the debt of Bisbee only in its inception. The fourth request is liable to the same objection.

The third and fifth requests were entirely in relation to the effect of certain parts of the testimony, and were rather for the purpose of having the court endorse an argument, than for the purpose of enlightening or directing the jury on a point where they would be likely to err. It has been urged that the charge of the court was objectionable, that the word “consent” is used in too indefinite a sense. I apprehend, however, there is no difficulty in understanding what was meant by the term; and it is difficult to see what question of law can arise from the use of that term.

It would be somewhat strange, if we should find any jury in the country, who, when they were told that they must find the consent or assent of a man to a particular transaction, would be at any loss either in understanding the term or ascertaining the fact from the testimony. ' It is contended that the jury were improperly told that this consent might be proved by the conduct of the members of the com- - pany, and that they might from this charge infer the consent of the defendant from the acts of Bisbee or the other members of the company.

If such an inference could have been drawn by the jury, the charge would undoubtedly have been erroneous. There is an inaccuracy in stating the case in this partic- “ ular. But the proposition laid down by the court, when taken in connexion with the other parts of the charge to the jury, is undoubtedly correct, and was not calculated to mislead the jury.

As a general proposition, and in answer to a request made in terms which are general, the instructions to the jury were right; for it is undoubtedly true, that when an attempt is made to charge the members of a company with the act of one, the consent of the members may be proved by their conduct; and it is upon the evidence furnished by their conduct only, that persons dealing with them can rely to show the nature and extent of their business, and the persons composing the firm.

The articles of partnership are with the parties, and are not made public ; and it is only from the conduct of the individuals composing the firm, by their declarations, and by what they hold out publicly to view, that people can ever learn who compose a firm or copartnership, and what is the nature of their business.

It is equally true, that any person, whether as a member of a company or not, may adopt the acts of his agent, or one of the firm of which he is a member, and thus give efficacy to that which would otherwise not be binding; and it is also true, that we may frequently infer by subsequent conduct a previous intention or consent to a particular transaction. If, from this part of the charge, it could have been supposed that the acts of Bisbee or of the other members of the company could bind the defendant, Keyes, then it would have been objectionable.

But it appears that no evidence was given in relation to the assent or dissent of the other members of the film; of course that was not in issue in the case. If the acts of Bisbee were to have any effect, the case would not have gone to the jury, as he had already signed the note for the firm. Nothing else could have been understood then as referred to in the charge, but the acts of Keyes, the defendant; and this would have been the understanding of' any plain, rational man,, even if it had been unaccompanied by any further explanation.

When taken in connexion with what was said both before and after, there was no possibility of any mistake or misapprehension ;■ but the jury must have turned their attention solely to what was the whole and only subject of inquiry during the trial, viz: the acts and conduct of Keyes, the defendant, as testifying his assent to the purchase of the distillery and extending the business of the firm to that particular business.

The charge in relation to the defendant taking control of the property which was the avails of both the furnace and distillery, has been objected to as being inconsistent with some other parts of the charge. This, however, is not perceived. It was wholly immaterial, and not called for from any thing which was in evidence, but appears to have been in answer to a particular request of the defendant’s counsel. It is said, however, that the acts and conduct of Keyes, which testified his consent, are not mentioned; that here is a mixed question of law and fact, which should have been separated by the judge.

The acts and conduct here referred to are those which the defendant noticed in his fourth request; those which had been given in evidence, commented upon by counsel, and had been the subject of long and labored argument. It would have been improper to have enumerated them specifically in the bill of exceptions; and as to fits being a mixed question of law and fact, it is difficult to see what question of law could here have arisen, which required any judicial notice in the charge to the jury ; and it is not seen that there is any such mixed question of law and fact as is supposed.

On the whole, we can see no questions of law arising in this case, on which the county court made an erroneous decision; none incorrectly stated in the charge to the jury.

The jury have found from the testimony, that this partnership, of which Bisbee and the defendant were members, although it did not originally embrace the business of distilling, was extended to it by their consent; that a distillery was purchased for their mutual benefit, with their consent, and for their common profit, the deed of which was taken to the partners by name, and the legal interest to a proportionate share of which is now in the defendant, Keyes; and from these facts, they have returned their verdict against the defendant.

We see no reason for setting it aside, and the judgment of the county court is therefore affirmed.