WOOD and Others against CONNELL and Others; CARTER against The Same; BELL and Another against The Same; MEREDITH and Another against The Same, 2 Whart. 542

The opinion of the Court was delivered by Hüstow, J. It appeared by the articles of agreement in the statement of the cause, dated 1st September, 1828, that John Connell and Worley and Welsh entered into p.n agreement of partnership to continue three years from that time. 'The agreement was signed by F. Worley, writing the name of Worley and Welsh. Thomas Welsh then lived in Baltimore; and there was no evidence that he was present, but rather proof to the .contrary.

It will be observed, for it was the subject of much comment at the trial, and on the argument here, that it is an agreement “.to carry •on and conduct mercantile business, under the name of John Connell.” “ The concern in Pittsburgh carried on in the name of John Connell, to the amount of $2000, out of the bales of goods or merchandize bought in the name of John Connell from the firm of Worley and Welsh.” “The concern to allow John Connell,” &c. &c.

It was not contested that John Connell purchased and received from the several plaintiffs the amount of goods charged to him; all these purchases were made from the ,3d of June to the 9th of June, 1829. The defence was, that Connell deceived Worley in the statement of his property prefixed to the agreement, and therefore the .agreement was void; but if not, it was rescinded by the parties on ■the 1st of June, 1829, before the sale of goods in question by the plaintiff. 2. That the articles of partnership were never acted on by the parties, but were abandoned .and extinguished instantly after being .signed. 3.

That Worley could not bind his absent partner by his contracting into a new firm. That Welsh never at any time assented to be a partner of this .firm or concern of John Connell, and in fact that he remained ignorant of it and of every thing relating to it until his removal to this city in May, 1831; and as a consequence that there cannot be a recovery against Welsh—or in this, suit against Francis Worley alone. Each of these matters depended on facts and documents given in evidence in the cause.

In the first three suits the defendants gave in evidence a relinquishment or dissolution of the partnership indorsed on the copy of agreement for partnership, which was in the hands of Francis Worley ; it was signed by John Connell and Worley and Welsh, (in the handwriting of Worley,) and it was dated 1st June, 1829, which date was prior to any of the sales by the plaintiffs, proved in these causes.

The plaintiffs produced testimony from the keeper of the stage office at Chambersburg, that Connell left that place in the stage for Baltimore on the 1st of June, 1829; proof from Baltimore that Connell arrived there on the 1st of June, and was there on the 2d and 3d of June; and proof in this city that he arrived here on the 4th of June. In the last case of Meredith & Co., the paper evidencing the dissolution was not read by the defendants. Some questions of evidence were made in the cause.

The paper books show that the books of Worley and Welsh and of John Connell were given in evidence, but afford no evidence of their contents. To understand the cause and some of the arguments and part of each of the opinions delivered to the jury, I must state some of the evidence exhibited by them. These books showed that Connell and Anderson, and John Connell after Anderson’s death, had purchased from Worley and Welsh. That the balance due Worley and Welsh on these accounts was on the ,31st of August,'1828, (the day before the partnership) $4104 29.

That previous to the 1st of September, 1828, the dealings with Worley and Welsh were of comparatively small amount, but immediately increased to more than double, and on the 1st of January, 1829, amounted to upwards of $21,000. I shall not go 'further than to state that the dealings in that year amounted by the books of both parties, to above $27,000, and a balance of above $13,000 against John Connell. John Connell’s books were produced among other things, to show his dealings with Thomas Welsh, in Baltimore. Thomas Welsh lived in Baltimore, and was a partner with his father A. Welsh, under the firm of A.

Welsh & Co. There was no evidence that he did business alone. Connell’s books showed purchases from and payments to Thomas Welsh, between the 1st of September, 1828, and August, 1829, and drafts on him and by him on Connell.

On notice, the letter book of Worley and Welsh was produced and read; much of it was immaterial; some letters were supposed to be of importance to the plaintiff, in which they write of sending Connell goods not ordered—of sending them at first cost, and of purchasing at auction on purpose for him; and Connell’s letters, in one of which he says, I can sell any thing you send that is considered cheap, except cloths. In August 1829, shortly after Connell nad purchased the goods for which these suits were brought, F. Worley sent a clerk, called Durborow, (now dead) to Pittsburgh, and J.

Connell made an assignment to F. Worley of all his effects. Another clerk went out and took possession of the property. The letters of instruction to, and the letters from those clerks, were not produced. In the assignment Worley and Welsh were among the preferred creditors, and received above eleven thousand dollars of the proceeds; some others were in the preferred class; F. Worley had settled his account as assignee. The plaintiffs had released under this assignment and offered the assignment and settlement in evidence. This was objected to and admitted.

The defendants have insisted that it was offered to prove a partnership, and was no evidence of this. In truth it was offered to prove many things. That Worley signed the articles of partnership for himself and Welsh, was admitted; it then lay on the defendants to make-a defence and the plaintiffs to repel this defence. The evidence of the defendants was given to show fraud in Connell at the time of making the articles ; that the partnership was not acted upon; and that Welsh never knew of or assented to the partnership.

Whatever conduced to prove the plaintiffs’ case in any of these points of view, was evidence; it was not necessary that the piece of evidence should by itself establish any point in the cause; if in connection with other facts or circumstances, it tended to prove any one point, it must go to the jury.

There are instances where a verdict will be set aside because irrelevant testimony has been admitted; e. g. where the acts or declarations of a third person are given in evidence; but where a matter of fraud or trust or partnership is to be proved by circumstances, and especially where presumptive evidence is to be countervailed by other presumptive evidence, I can hardly conceive of a case in which every act and declaration of the parties relating directly to the matter in dispute, may not go to the jury.

Besides the court could not know how the. jury would find as to the disputed points; and if they should be of opinion -that there was a partnership, the fact that Connell had represented himself as alone liable, and had preferred his partners as creditors, would avoid the release which they had executed to him. The defendants had taken the testimony of John Connell on a commission to Ohio, where he now lives, and the plaintiffs had joined in the commission, and put cross-interrogatories, reserving the right to object to the competency of the witness in court.

This testimony and an ex parte deposition of John Connell were offered in evidence, and rejected by the court; and this is urged as another reason for a new. trial. This point was decided in Carter v. Connell, (1 Wharton's Rep. 392); but as it has been renewed and much pressed, I will again ' notice it. It was pressed that he was released by both the plaintiffs and defendant, and that from evidence in the cause, the whole fund was exhausted ; and it was urged and many cases cited to show that where the party offered is totally disinterested, he must be admitted.

Without disputing the authority of those cases, I reply that not one of them is the case of a partner defendant called by his partners, also defendants, to prove their case; that although the funds have been nearly all collected and applied, yet it is one thing to prove the funds entirely exhausted, and a different thing to stop at proof that they are nearly so ; but the assumption that Connell has been released by the plaintiffs, though true in the letter,'is denied in fact, for if the jury should find he had partners and concealed it and preferred them as creditors, the release is void for fraud.

But it was also said that Connell by getting a verdict for the defendants, would leave himself liable for the whole. In one of these complicated cases depending on how several points are found, it is very unsafe to decide on a single point: if there is a verdict for the defendants, it would be evidence that they were not partners; and if not partners, then the release from the plaintiffs to John Connell is valid, and he is discharged.

In the circumstances in which he is placed in this cause, he will be liable to the plaintiffs, if they have a verdict and do not get their "demand from Worley and Welsh; if a verdict is obtained for the defendants, it clears them, and negatives the allegation that the release is fraudulent by reason of concealing his partners and making creditors of them: in fact he by his own testimony, affirms the release' and discharges himself and his future property from the plaintiffs.

For these reasons and those given in 1 Wharton’s Rep. 392, there was no error in rejecting this testimony. 'Our act which leaves him liable, though not served with process in this cause, perhaps makes the law different from what it would be, if this would forever exonerate him. There was a matter, not assigned as a reason for a new trial, urged with earnestness.

Notice had been served on Thomas Welsh and Worley and Welsh to produce, their correspondence from 1st September 1828 till after the assignment of Connell, also a draft of Connell on him, and of himself on Connell, statements of the concern, furnished half-yearly by Worley, &c. And T. Welsh, on oath, stated that he had not the papers called for; that when he removed from Baltimore to this city in 1831, he had destroyed all papers which he considered useless.

His own counsel then asked him, “ Did you at the time you destroyed those letters, &c. know of the existence of that paper called the articles of co-partnership!” The court decided.the question to be improper. In arguing the matter here his counsel put it on the footing of a bill of discovery in chancery where, he said, the defendant might answer ¡fully as to all relating to the matter of inquiry. Now it is not a bill of discovery, nor like one. It is a common law matter.

The party is not bound to answer; generally, he does, to avoid a presumption against him; he is to produce the papers called for or deny their existence, or prove their loss, or that he has them not; and he can go no further; his own counsel cannot ask him any question, unless perhaps to get a more explicit statement, where his answer is not clearly intelligible, but never, as in this case was proposed, examine him as to the very gist of the cause. It only remains to notice the objections to the charges delivered to the jury by the different judges.

One thing when explained, will take off most of the supposed difference between them. Justice Sergeant did not write out his opinion before or since he delivered his charge to the jury. Mr. Randall, one of the defendants’ counsel, took a note of the substance of the several topics on which the judge charged. This was stated by the counsel. Judge Rogers who supposed there must be a rehearing, wrote out his charge before giving it to the jury. In substance I see no difference between them which can affect the ultimate decision of this cause.

The supposed difference in taking by the one a distinction between a dormant partner and a secret partner, is not very easily found in the charges themselves, Collier seems to mention them as distinct. Gow’s Treatise, I think, treats them as the same. As the counsel, has not pointed out, nor do I know of any distinction which would be material in this cause, I shall pass this over.

It was, and so each judge told the jury, a material consideration, whether Connell and the defendants did not intend to conceal their connection, and whether this had not an effect on the face of their books and the ignorance of the clerks as to any partnership. I do not mean any reflection or imputation on the counsel in this case, but many of the objections suppose the charge to say more than it said, and there are some objections to opinions called for by the argument, and now alleged to be illegal.

Thus a point made was, that if Welsh was not liable, there could not be a verdict against Worley alone; and so the judges, each of them stated; but it is now alleged that this might have had an effect in inducing a verdict against both. If the judge had omitted to .give an opinion on this point, we should have had a motion for a new trial; and now we have one, because he gave a correct one, but in language too pointed.

The defence, rested on several grounds :-if either of the two first were found for the defendant, there was an end of the case—if found for the plaintiffs, then the jury would,find it necessary to consider the remaining questions; this is admitted, and as the judges each toldt he jury; but the terms in which this opinion was expressed, are not to the taste of the counsel: there would be no end of new trials if these objections could have any weight. (/) This ought to be at rest. In Carter v. Connell, this court gave an opinion on the point.

No man could see the statement of Connell’s situation prefixed to the articles without seeing that he had incurred responsibilities three months before, to the amount of $28,000; and the account showed sales since that time of say f15,000. Whether Worley inquired as to the debts we know not; and what answer Connell gave we know not.

It never can be endured that parties shall enter into partnership and go on for a year, and incur heavy debts, and then one cut himself loose by his own statement that his partner was indebted to a greater amount than he expected; it would not only be dangerous but unjust to the public, that a solvent partner should be discharged on such allegations, unsupported by proof, or even if proved, and he continued in the partnership after he knew or suspected the imposition. I shall not go over the remaining points in detail,—(

g) and (

l) are the same, but the latter in stronger language, and both rather an overstrained gloss on the charge fairly understood. It was expressed in the agreement, that the business should be in the name of John Connell; and though probably the agreement and dissolution were written in Worley’s counting-house, no witness was called to either. The great stress of the argument on this part of the cause stood on the facts, that the books did not show and the clerks did not know of the partnership; and the judge said the jury might think with him, that under the circumstances in this case, there was' not much weight in the argument from these facts. (

A) and (

m) are the same, and are nothing. The defendants relied on there being nothing to show partnership in the books, and its not being known to the clerks. The plaintiffs relied on many facts and circumstances—he left the jury to decide on the weight of each. (

n) charges the judge incorrectly—what he did say was, “ I do not mean to say that it (Welsh’s assent) may be implied or proven by the memorandum or acts, declarations or consent of one of the parties; but it may be shown from the acts of one, declarations of another, and the memorandum or conduct of the third. You must take them all together, and from the whole evidence you must decide whether a partnership did in fact exist.” And again in another part of the charge he says, “ The fact of Welsh’s assent to the partnership or his knowledge of it, maybe inferred from circumstances.

For although consent or knowledge is necessary, yet this as has been before observed, may be shown either directly or may be inferred from the acts, declarations, or conduct of the parties. You, gentlemen, are bound to form your conclusions from the whole evidence, from the entries in the books of one or all, the declarations of another, and the acts, declarations and conduct of all the parties to this contract; a written authority is not necessary.” I have not recapitulated more than a small part of the evidence; only enough to show the nature of the dispute and of the charge and defence.

There are other causes to be tried as we have been told, between other plaintiffs and the same defendants. The contest arises from and depends' on many facts, and the inference's from those facts—and this is the province of the jury, as they were constantly told by each of the judges. There is an additional reason for a new trial, which I shall notice. The order is this: one of the counsel for the plaintiffs, aftér the evidence is given, addresses the jury, states the points of law, and cites the authorities.

The defendant’s counsel are then heard, and often introduce points of law and topics of argument not foreseen by him who preceded them. This almost always makes it necessary for the concluding counsel on the part of the plaintiff to’take a more extended view of the evidence and the law than his- colleague had done.

It would be strange to suppose two such counsel as appeared for the defendants in this cause, would not make it necessary for the concluding counsel to view the cause on a very extended scale; he can’t state mere points of law or cite new authorities, except in refutation of the arguments of his opponents; but he may, with this limitation, use all his force for- his elient. We do not see reason for granting a new trial. New trial refused. In the course of the argument Judge Sergeant stated that he had revised and corrected Mr.

Randall’s notes of his charge, and that as printed in the paper-book, it was substantially correct.—Rep.