Nichols v. White

Full title: JOHN C. NICHOLS, Respondent, v . ANDREW G. WHITE, Impleaded, etc.…

Court: Court of Appeals of the State of New York

Date published: Jun 21, 1881

85 N.Y. 531 (N.Y. 1881)

Opinion

Argued May 4, 1881

Decided June 21, 1881

Nathaniel C. Moak for appellant.

Edward Savage for respondent.

ANDREWS, J.

We think the judgment in this case, should be reversed, for error in the admission of evidence.

The plaintiff, called and examined William H. Nichols, one of the defendants named in the summons, and one of the five persons originally constituting "The Lawrence Brewing Company," as a witness. The defendant White, at a subsequent stage of the trial, recalled this witness, and he then testified to facts, tending to show that "The Lawrence Brewing Company" copartnership, was dissolved on or about October 16, 1871, prior to the making of the notes in question, and that the business thereafter was carried on in the same name, by the witness alone. He also testified to a conversation with the plaintiff, prior to, but about the time the notes were executed, in which the plaintiff in reply to the declaration of the witness, that the defendant White was a partner, stated in substance that White was not a partner, because he had accepted the proposition of the witness, to purchase his interest in the firm. The witness further testified, in substance, that the plaintiff refused to indorse the paper unless secured by a bill of sale of coal, and that the indorsement was made on the security of coal, which the witness transferred to him at the time. After this testimony had been given, the plaintiff was reexamined as a witness on his own behalf, and a paper was shown to him, addressed to the plaintiff, but having no signature, and which he testified was received by him from William H. Nichols, and was in his handwriting. This paper was offered in evidence by the plaintiff's counsel, and its admission was objected to by the defendant's counsel, as immaterial, irrelevant, and incompetent. The objection was overruled, and the paper was read in evidence. It was a statement to the effect, that the plaintiff was informed, when the notes in suit were indorsed by him, that the defendant White was a partner in "The Lawrence Brewing Company," and that the plaintiff indorsed them, on the strength of this statement.

We know of no principle in the law of evidence, which justifies the introduction of this paper.

The principal controversy in the case turned upon the questions, first, whether the copartnership between William H. Nichols, and the defendant White, which was admitted to have existed up to October 14, 1871, was then, or about that time, dissolved; and second, assuming that it was dissolved prior to the indorsement of the notes in suit, whether the plaintiff had notice of the dissolution, when he indorsed the paper.

It is not claimed that the partnership continued later than January, 1872. The plaintiff claimed that it was not dissolved until that time, while the defendant claimed that it was dissolved in October. The evidence does not conclusively establish the fact either way. If, as the defendant claimed, the dissolution took place in October, nevertheless, the plaintiff insisted that he had no notice of the dissolution, and that, in the absence of notice, he could continue to deal with the firm as before, upon the basis of its continuance. It does not distinctly appear when the statement admitted in evidence was written; but it was written after the dissolution of the firm, and after the commencement of this suit. The paper was not relevant to any fact to be established in the action, against William H. Nichols. He did not defend the action. The only issue was as to the liability of the defendant White, and he alone defended. The statement, as against him, was mere hearsay. The declarations of one partner after the dissolution of a firm, not made in the business of winding up, and not connected with any transaction or dealing connected with the dissolution of the partnership, are inadmissible against his copartner. He may bind himself by his admissions, but as to his former partners, his agency, except for special purposes, is terminated by the dissolution, and his admissions are like those of a stranger, and they are not bound by them ( Walden v. Sherburne, 15 Johns. 409; Mc Pherson v. Rathbone, 7 Wend. 217; Hogg v. Orgill, 34 Penn. 344; 2 Greenleaf on Ev., § 484.) It does not appear that the statement was offered, with a view to contradict the testimony of William H. Nichols, and the counsel for the plaintiff does not seek to justify its admission, for that purpose. That it was not admissible by way of impeachment is clear from the case of Coulter v. Am. Mer. Un. Ex. Co. ( 56 N.Y. 585).

There are numerous other exceptions to evidence in the case, but it is unnecessary to consider them.

For the error in admitting the written statement of William H. Nichols, the judgment should be reversed and a new trial ordered, costs to abide event.

All concur.

Judgment reversed.