Daniel v. Lance

29 Pa. Super. 454, 1905 Pa. Super. LEXIS 356

• Court: Superior Court of Pennsylvania
• Decided: November 21, 1905
• Docket: Appeal, No. 70
• Status: Published

Opinion

Opinion by

Portee., J.,

The plaintiff had proved that the two notes in question had been given for a debt of Lance Sons, and that Charles D. Lance had from 1886 to the time the notes were given represented that he was a member of the firm doing business under that style, and that said Charles D. Lance had for said firm transacted the business with the plaintiff; after this preliminary. proof the notes were properly received in evidence, and the first specification of error is without merit.

Charles D. Lance was the only defendant served and the issue was tried as to him alone. The plaintiff had declared against the defendant as a partner in a firm composed of himself, Joseph P. Lance and Walter W. Lance, trading as Lance Sons, the firm of Lance Sons had not registered in accordance with the provisions of the 13th section of the Act of April 14, 1851, P. L. 612, and the right of the plaintiff to recover could not he defeated by “ the omission of the name of any member of the partnership, or the inclusion of the names of persons not members of said partnership: ” Tilli v. Vandegrift, 18 Pa. Superior Ct. 485; Daniel v. Lance, 21 Pa. Superior Ct. 474. Under the issue being tried it was only necessary for the plaintiff to prove that the notes had been given for a debt of Lance Sons; by some person authorized to sign the paper of that firm, and that Charles D. Lance was a member of the firm, or had held himself out to be such. The defendant in his testimony admitted that he had been a member of the firm at the time the dealings with the plaintiff had their inception and that he continued to be a partner until October 5, 1888, that he then sold out his interest in the partnership and notified this plaintiff of that fact, and that he subsequently carried on and managed the business of the firm as the attorney in fact of his brothers. There was no change of the name under which the partnership carried on its business. The defendant having been a member of the partnership at the time the course of dealing with the plaintiff had its inception, having personally, as a member of the firm, transacted the business of the partnership with the plaintiff for a considerable period, and having after his alleged withdrawal from the firm still continued, in the same partnership name, to transact business with the plaintiff, the latter would, under the circumstances, be justified in still considering him a partner, unless he, the plaintiff, had notice that the defendant had withdrawn from the partnership. The defendant did not deny that the notes were given for the debt of the firm of Lance Sons, but asserted that these particular notes had been signed by Joseph P. Lance. The learned judge of the court below was, therefore, correct in holding that the liability of the defendant in this action was, under the evidence, dependent upon whether the plaintiff had been notified, as testified by the defendant and another witness, that Charles D. Lance had retired from the firm and was merely acting as the representative of his brothers. The third, sixth, seventh, eighth and twelfth specifications of error are dismissed.

While the right of the plaintiff to recover was not dependent upon whether Charles D. Lance had actually signed the notes in suit, that fact was one material for the jury to consider in passing upon the question upon which the right of the plaintiff to a verdict ultimately depended. Did the defendant hold himself out as a member of the firm, or did the plaintiff have notice that the defendant had withdrawn from the partnership ? The plaintiff testified that he saw Charles D. Lance sign these particular notes and received them from him. This evidence was material to the issue and was properly received. The testimony, offered on the part of the defendant, that these notes were signed by Joseph P. Lance and were by him delivered to the plaintiff, directly contradicted this material allegation of the plaintiff and tended to establish that the course of dealing had been different from that which the latter asserted; in this view it bore directly on the main question, and it was certainly proper for the jury to consider in passing upon the credibility of the plaintiff and the accuracy of his recollection. The second and ninth specifications of error are sustained.

The fourth specification of error is not worthy of serious consideration. Counsel for the defendant requested the court to instruct the jury that if they found from the evidence “ that the plaintiff, Charles A. Daniel, has sworn falsely in this case, his testimony, where it is contradicted by other witnesses, should be disregarded, applying the rule that a witness false in one is false in all.” This point was predicated upon the fact that the plaintiff had in his original statement, verified by-affidavit, alleged the firm of Lance Sons to be composed of this defendant and certain other persons and that he subsequently presented a petition, verified by affidavit, averring that the names of two persons had been improperly included, as partners, and that another name had been improperly omitted, and moved for an amendment of the record. Each of these affidavits was upon its face asserted to be made from information and belief, and there was no evidence in the case from which a jury ought to have been permitted to find or infer that the statements were corruptly made. When a partnership has not registered the names of its members it is often very difficult to ascertain the persons of whom it is composed, and a plaintiff is not to be subjected to the imputation of perjury because later information warrants him in amending his record.

The third point submitted by the defendant might have been affirmed with proper explanation. The mere fact that two witnesses testified that the plaintiff had been told that Charles D. Lance had retired from the firm was not conclusive of that question. The jury may have been satisfied that such a representation had been made to the plaintiff, but they may also have been satisfied that the representation was not true and that Charles D. Lance never had in fact retired from the firm or they may have been convinced that Charles D. Lance had subsequently represented to the plaintiff that he was a member of the firm.

The learned judge of the court below was right in refusing to permit defendant’s counsel to send out with the jury the affidavit to the statement of claim and- that to the petition for the amendment of the record, for the alleged purpose of discrediting the testimony of the plaintiff by showing that in the original statement there had been a mistake as to the persons who constituted the defendant firm. . The zeal of defendant’s counsel misled him into invoking a principle for which the evidence in this case afforded no foundation. The refusal of the court to permit the defendant’s counsel to submit the signature of the defendant to his affidavit of defense to the jury for comparison with the signatures to the notes in suit was proper. The signatures were not the same, that to the affidavit was Charles D. Lance and that upon the notes was Lance Sons. The controlling reason for holding such a comparison improper, however, was that the signature to the affidavit was made in this very proceeding and after the controversy had arisen, and there was no evidence that the signature of Charles D. Lance, to the affidavit, was made in the way in which he ordinarily wrote it; see American & English Ency. of Law (2d ed.), vol. 15, page 274, and cases there cited. The tenth and eleventh specifications of error are dismissed.

The judgment is reversed and a venire facias de novo awarded.