Gilpin v. Temple

4 Del. 190

• Court: Superior Court of Delaware
• Decided: July 5, 1844
• Status: Published

Opinion

By the Court:

The inclination of our minds is against the admissibility of this evidence. It is nothing more than hearsay evidence, which is admissible only in cases of pedigree, &c. &c. General reputation of a partnership might arise from the declarations of Thomas, unknown to Temple, and which ought not to charge Temple; and yet, after proof of acts or declarations of Temple himself, giving^! to the public the idea of a partnership, it would seem reasonablemat such evidence of reputation should be admitted. Such is the decision of the Supreme Court of New York, on the authority of which we shall admit the evidence, but shall expressly state to the jury that if this reputation is not proved to have originated with, or be founded on, the acts or declarations of this defendant, Temple, it is not to be considered by them in proof of the partnership.

Johnson and Clayton, for plaintiff Wales, for defendant.

The case turned on this question exclusively, as to which the court charged;—•

Booth, Chief Justice.

—The right of the plaintiff to recover depends upon the fact whether there was a partnership existing between this defendant and James Thomas. This is the only question in the cause. What constitutes a partnership is a question of law. Whether a partnership exists is a question of fact. Where the suit is between parties as partners, strict proof is required of the existence of the partnership; of the community in profits and losses; and of the contract itself of partnership. But the case is very different where the suit is by a third person against persons who are sought to be charged as partners. In such case, all those circumstances from which the existence of a partnership may be fairly and reasonably inferred, are properly to be taken into consideration by a jury. Hence, if there is sufficient proof that the defendant by his acts and declarations has admitted or acknowledged himself to be a co-partner, or that he has dealt with others as a member of the firm, or represented himself as a partner, and was trusted as such in consequence of such representations—all these are circumstances from which a partnership may be inferred. So also where it is clearly shown that the parties have held themselves out to the world as partners, or have jointly participated in the profits of the concern in respect to which the action is brought, a partnership may be inferred. And even where, in point of fact a partnership did not exist, but the parties have held themselves out to the world as partners, and thus gained a credit as such, each one is liable as a partner to third persons trusting or confiding in them as such.J But the acts or admissions of only one of the persons alledged to be a member of the firm, are no evidence to establish a partnership, against the defendant, who is sought to be charged as a partner; Therefore, the acts or admissions of James Thomas are no evidence against this defendant; and no act done by third persons which affects to treat the parties as paring, is evidence against the person charged as a partner, unless such act has been recognized by him. The plaintiff’s books of account are no evidence to establish a partnership. Nor is the pass-book spoken of any evidence for that purpose, unless the jury have proof that it was acknowledged or recognized by the defendant;'

The defendant had a verdict.