EMRIE v. GILBERT & CO., 1 Ohio Ch. 764

Wright, J. The evidence is from the plaintiff’s- own, witness, and will not be ruled out. The motion for a nonsuit is overruled. The evidence is not conclusive of the fact of partnership — the jury can act upon it. Thetestimony is, that lie understood, from being in and out, that the plaintiff was a partner. Much evidence’ was then introduced by the parties touching their accounts, and of the declarations of the parties at various times as to the partnership.

The defence gave in evidence a receipt from the plaintiff in full of all demands, and gave evidence that when the Hemisphere was established the parties were in partnership; but the plaintiff became embarrassed, when they came to an understanding, and the receipt was given to keep up the appearance of a dissalution, and to prevent the plaintiff’s creditors from attaching the ■property. O. Parish objected to proving the contents of the order without producing it. Bryan, Was recalled to explain the transaction, when the receipt was given, and the order passed. Parish, objected.

Kirby, contra, stated his object to be to prove the whole transaction fraudulent, which could not avail the defendants, and to show that the receipt was not in fact given for money. ‘Kirby and G. Swan, for the plaintiff^ argued to the jury, and Gilbert and O. Parish, contra. . The plaintiff in rebutting, called a witness, in reference to an order on Kesling, transferred to the Cincinnati type foundery, and that Gilbert said he was to account to the plaintiff for it when paid, and that it had been put in suit.- Wright, J.

The party is only proving the fact of the ^existence of the order and its transfer, to introduce the declarations of the defendant, that he was to account. He is not seeking 'to prove the contents of a writing kept back. Admitted. Wright, J. It is competent to correct a mistake in the receipt in the amount, and to show the real state of the transaction, and if it shall turn out, that upon controversy about the amount due, a receipt was given for a certain sum in full to settle, that will, conclude the parties. The evidence may be given. Wright, J. to the jury.

If the plaintiff was in partnership with-the defendants when the suit was brought in the matter in controversy, he cannot recover. But if a dissolution took place before suit, and the partnership transactions were settled, and a balance found due the plaintiff, he may recover for such balance.

And if the partnership transactions were fully settled, and satisfied either with money or by a negotiable, note, as expressed in the receipt, the plaintiff cannot recover, although the note remains unpaid, because he must resort to the note, which is an outstanding subsisting contract, and either sue on it, or produce and cancel it, if he rely upon the common declaration.

As to the order on Kerlin, if the evidence satisfies you that the defendants were only to account for that when collected, then the' plaintiff cannot recover on it until there is proof of its payment in whole or in part, or a discharge availing the defendant as money. If given without such condition, and it has availed the defendants as money, the plaintiff may recover without proof of payment.,' As to the receipt.

If it were given for the fraudulent purpose of covering up the property of the plaintiff, when that fact appears, neither party will be permitted to derive advantage from the use of the fraudulent instrument. Its notice may be shown, and if ascertained to be fraudulent, courts of justice will not restore either party to what he has parted with under the arrangement, but leave the parties just where they have placed themselves. Verdict and judgment for the plaintiff.