Opinion
01-18-1820
Cocke v. Upshaw, and Pritchett Executor of Burnett
The object of the Bill in this case, filed by the appellant, in the Superior Court of Chancery for the Richmond District, was to subject the estate of Jeremiah Burnett, unadministered by Pritchett his executor, to the payment of a debt for goods sold by the Complainant to Leroy Upshaw, who afterwards became insolvent and absconded.
The Complainant alleged that Upshaw induced him to let him have the goods, by producing a letter of credit to which the names of Jeremiah Burnett and of two witnesses, were subscribed; which order was afterwards declared by the said Burnett, and both the pretended witnesses, to be a forgery; but that, in fact, the said Burnett was a secret partner in trade with the said Upshaw, in whose name only the business was carried on; Burnett being willing to be benefited by the gains, but not to be liable for any of the losses."
Pritchett's Answer denied the secret partnership charged in the bill. Sundry depositions were taken on both sides; shewing confessions and denials, by Burnett, of such partnership, on various occasions.
Chancellor Taylor dismissed the Bill, with costs; whereupon the plaintiff appealed.
Decree reversed with costs, and the cause remanded.
OPINION
The following was this Court's Opinion.
The Court, doubting, upon the testimony, whether it is not proved in the cause that the intestate Burnett was a secret partner with the appellee Upshaw at the time of the transaction in question, is of opinion that the Decree is erroneous, in dismissing the bill, instead of causing this fact to be decided by an issue directed for that purpose. The Decree is therefore reversed with costs, and the cause remanded to be proceeded in pursuant to the principles of this decree.