Howe v. Thayer

34 Mass. 91

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1835
• Status: Published

Opinion

Shaw C. J.

drew up the opinion of the Court. The object of this action is to charge the defendants jointly as partners, for provisions furnished to the Mount Pleasant Institution. The defendant, Fellows, has admitted his liability, by a default; the defendant, Thayer, denies his liability as a partner, and has pleaded to the action.

It is obvious, that the name or style of this partnership, The Mount Pleasant Institution, had no tendency to inform the community who the persons were who composed the firm ; and when the name of Colton & Fellows was occasionally used without the addition, “ Co.” or other indication that another was concerned, it had no tendency to disclose the fact, that the defendant, Thayer, was a partner. So the occasional use of the style, “ Newton & Fellows,” after-wards, had no tendency to give notice to the community, that the defendant, Thayer, had withdrawn or changed his relation from what it had been before, with the concern The continued use of the more general designation, “ The Mount Pleasant Institution,” indicated the continuance and identity of the partnership.

The Court are of opinion, that the directions of the judge to the jury upon the effect of the evidence offered, was correct. When a business is carried on by three or more as partners, and one withdraws, or one is added, or both, and notice thereof given, and the business is carried on as before, those, as to whom no notice is given, must be presumed to hold the same relation to the concern that they did before, and such change furnishes no presumption that the others have ceased to be partners. If the plaintiff knew that Col-ton had withdrawn and ceased to be a partner, it was not in law a notice to the plaintiff of the dissolution of the part nership, as to all its members, to the effect contended for, and to the purpose for which that proposition was advanced, namely, to exempt the other members from liability for after-made contracts; or, if it was in a certain sense, evidence and notice of the dissolution of the same identical partnership that existed before, it was at the same time evidence and notice of the formation of a new partnership among all the remaining members of the firm, to carry on the same business, holding the same relation to its customers and the public, with the single exception implied by the fact, that the retiring partner will no longer be liable for new contracts, and that the acceding partner will thenceforward become liable.

The Court are also of opinion, that the direction in regard to the burden of proot was right, which was, that it was incumbent on the plaintiff in the first instance to prove the defendant, Thayer, a partner, and if this were done, he would be liable, unless he could prove a dissolution, as it regarded himself, and notice of it to the plaintiff, before the supplies ; that the withdrawal of one partner, other than the defendant Thayer, and the accession of another, the business in other respects going on as before, was not evidence from which a jury should infer a dissolution, in respect to the defendant, Thayer; but if he knew that by the new arrangement, Newton and Fellows alone were to compose the partnership, and be responsible, before he furnished the supplies, the defendant, Thayer, would not be responsible. This in struction was correct, and properly adapted to the state of the evidence.

In respect to the admission of the evidence, that the witness had given a different notice to the other creditors, from that which he stated that he had given to the plaintiff, we are of opinion, that it was rightly admitted. This was not contrary to the well-known rule, that a witness interrogated on cross-examination to an immaterial and collateral fact, with a view to try the accuracy of his recollection, or to test his correctness in any respect, cannot afterwards be impeached by calling witnesses to -contradict him in respect to such fact. The purpose of the evidence was not to contradict the witness. It was material to the issue, not only to show' that the witness had given some notice, but the form, substance, and particulars of that notice. It was offered as proof of notice to the plaintiff as a creditor, of the general dissolution of the copartnership carrying on the business of the Mount Pleasant Classi cal Institution. The plaintiff denied this, and insisted that it was a notice of a different character. The witness stated that he gave notice to all the creditors and customers of the institution at the same time. We think the effect of his testimony was, that he gave to them all, the notice of a general dissolution of the partnership, and that the defendant Thayer had ceased to be concerned. It is then manifest, that he intended to give the same notice to all standing in the same relation, and the natural inference would be that he did so. When therefore it was offered to show, that he gave a different notice in form, substance and effect, to others standing in the same relation, it is not merely to show that the witness is not to be believed, because he has made different statements at different times, indicating a want of recollection or integrity, but it is a fact bearing upon the issue, namely, what was the form and substance of the notice which he in fact gave to the plaintiff. Like all inferences from circumstances, it is founded on experience. A man goes forth to a class of persons, standing in the same relation, to give them a notice affecting their interests alike. If there are ten, and he gives a particular notice to nine, it leads to a probable inference that he gave a like notice to the tenth, where he states that he intended to make no distinction, and believes that he notified all alike. Its tendency is not, therefore, merely to bear upon the credit of the witness, but upon a material fact involved in the issue, to be proved either by the testimony of that witness, or by any other evidence, positive or circumstantial, which is competent and relevant. The evidence being admitted for a proper purpose, it is certainly no objec. tion to it, that it has a tendency to impeach an adversary’s witness by contradicting him.

Another exception is, that the defendant offered one of the creditors named by the witness, to support the witness, by proving that the creditor had notice from the witness, as the witness had testified, and this evidence, being objected to, was rejected. It appears that the sole purpose for which this evidence was offered, was to support the party’s own witness in point of credibility, and was rightly rejected. It could have no tendency to sustain the credit of a witness, to prove by other evidence a fact stated by him, in regard to which there was no contradiction. The ground upon which the rejection was put, namely, that in respect to this the witness needed no corroboration, gave the defendant all the benefit of the legal presumption.

Judgment on the verdict.