Humes v. O'Bryan & Washington

74 Ala. 64

• Court: Supreme Court of Alabama
• Decided: December 15, 1883
• Status: Published

Opinion

SOMEKYILLE, J.

— 1. The motions severally made by the appellant, in the court below, to suppress the depositions of George W. and Angelo Glover, should each have been sustained, and the court very clearly erred in overruling them. These witnesses were personally present in court at the time of the trial, when their depositions were offered in evidence. The reason, or existing necessity for taking the depositions, having been removed by the personal presence of the deponents, their oral testimony in open court then became the best evidence. It is the settled and incontrovertible rule, in the absence of a statute to the contrary, that the deposition of a witness is inadmissible, when the witness himself is present in court at the trial, and is competent in every respect to testify. — Starkie’s Ev. (Shar.) 409, 410; Mobile Life Ins. Co. v. Walker, 58 Ala. 290.

2. We see no error, however, in the action of the .court refusing to suppress the depositions of the witnesses, Carney and Carter. The record shows that the court, at a previous term, had granted a continuance of the cause to the defendant, upon his application; and the order proceeds to recite, that, “m consideration of'said continuance,” it was ordered by the court, that the plaintiff be allowed.to take the depositions of 'sundry witnesses, including the two last named, “on filing interrogatories and giving notice as is required by law; to which order f it is added, “ defendant excepts.”

It cannot be questioned that nisi prius courts possess a large discretionary authority in granting or refusing continuances of pending causes between litigants. It is a power essential to.tho prompt administration of justice, and its exercise is beyond the jurisdiction of the appellate court to control or revise. It is common practice to grant such applications on conditions, such as the payment of costs, the admission of certain facts, or the waiving of irregularities in depositions, the taking of which has not been in strict conformity to statutory requirements. The rule of practice, governing applications for continuance, is very broad in its provisions, declaring that “ such terms may be imposed, as to the court shall seem proper.” — Rule No. 16, Code (1876), p. ICO. The objection urged is, that the court, by .its order, dispensed with the preliminary step of an affidavit, which is a statutory requirement for the taking of depositions, in civil cases, before a commission can issue for this purpose. If the court can require the admission of an entire statement of an absent witness, as a term or condition of continuance (which is unquestionable practice), it can certainly require the applicant to dispense with the necessity of an affidavit. In the former case, the whole statutory machinery for taking depositions is dispensed with, and required to be waived; in the latter case, only a part of it.

3. It is insisted, however, that the record shows that the appellant objected, to accepting the continuance on the terms imposed. We do not so construe the record. The recital following the order of continuance is — “ to which order defendant excepts.” It is obvious that the appellant enjoyed the benefit of the continuance, and did not object to that; otherwise, he would have insisted on proceeding with tlie trial of the cause. TIis exception, according to a well settled rule, must be most strongly construed against him, as the excepting party. It must he taken as an acceptance of the continuance, with an objection to the term.s imposed. This was not permissible. The enjoyment of the benefit of the order as made, was an acceptance of the condition with which the court saw fit to burden it. The two should have been accepted or rejected as an entirety, and this course does not seem to have been followed.

4. It is an established rule of evidence, that while, in ordinary cases, the mere declarations of a person as to a particular fact are not evidence of that- fact, being regarded as hearsay; yet declaration's made by a person which are at variance with his pecuniary or proprietary interest, are 'admissible in evidence of their own truth, under certain circumstances. These conditions are, that the declarant possessed competent Icnoioledge of the facts, and is deceased, at the time his declarations are proposed to be proved. The absence of any motive 'of a pecuniary nature, which would tempt him to falsehood, creates a strong and intrinsic probability of the truth of his declaration ; and it is, therefore, admitted as secondary evidence, after the death of the declarant, being the best -which the nature of the case will, under the peculiar circumstances, permit. — 1 Greenl. Ev. § 147; Starkie’s Ev. (Shar.) 64; Higham v. Ridgway, 2 Smith’s Lead. Cases, 183; 1 Whart. Ev. § 226, et seq. The weight and value of such evidence depends, of course, upon many considerations of a variable character. — Raines v. Raines, 30 Ala. 425.

5. We are of the opinion that the declaration of Glover, testified to by the witness Gordon in his deposition, comes within the class of declarations against interest, under the principle above announced. Glover’s declaration was, that the appellant, Humes, was never his partner, except in the planting business; and this statement appears to have been made, with special reference to the pecuniary liability of the parties on the claim which is the basis of the present suit. The death of Glover was proved, and it was shown, furthermore, that there were no assets of the alleged mercantile partnership of Glover & Humes, the reputed firm, as such, being regarded as insolvent at the time of Glover’s declaration. This fact, it must be noticed, is of vital importance as affecting the question of interest. In the absence of the- fact of insolvency, it is manifest that the converse proposition — that Humes was a partner of the declarant — would be a declaration against his interest. This is so because, if true, it would entitle Humes to a half interest in the partnership assets belonging to the alleged firm of Glover & Humes. The- assertion, therefore, that Humes'was not a partner, having been made át a time when the partnership business had failed, it was a declaration exonerating him from a pecuniary liability for the partnership debts, and, if true, to this extent doubled the ultimate amount of Glover’s liability, by destroying his right of recourse against Humes for any portion of the debts due by the reputed firm.

6. There is another not less familiar rule-of evidence, applicable to a large number of the rulings of the court below. It is, that the declarations of one in possession of property, explanatory of the possession, made in good faith, and showing the character or extent of his claim to it — whether in his own exclusive right, or as tenant of another; of the capacity in which he claims, as partner, trustee or agent for another — aro admissible. in evidence, in an issue of disputed ownership, no matter who may be parties to the litigation, — Daffron v. Crump, 69 Ala. 11; Clealand v. Huey, 18 Ala. 343; 1 Brick. Dig. p. 843, § 558; Thomas v. Wheeler, 47 Mo. 363. The theory, upon which the law admits such declarations, is, that they are a part of the res gestee of the possession itself; such possession being-the principal fact, and itself prima facie evidence of ownership in fee simple. — 1 Greenl. Ev. § 109; Perry v. Graham, 18 Ala. 822; 2 Wharf. Ev. § 1166. Of course, in all such cases, the fact of possession should itself be admissible as one pertinent to the issue. — Fail v. McArthur, 31 Ala. 26.

7. Under the influence of this principle, it is our opinion that the various acts and declarations of Glover, while in possession of the goods, and carrying on the alleged partnership business at the store in Morgan county, were admissible, so far as they were explanatory of his possession, as indicating whether the goods were his own individually, or were claimed jointly by him as partner of another person. Hence, it was admissible to show that, while in actual possession of the-alleged partnership assets, he declared that they belonged to him, or to himself and Humes as partners, as the case may have been; or that he conducted the business.-in the partnership name, or under a partnership license; or that he sold spirituous liquors in his own name, if they constituted ostensibly a portion of the stock of merchandise in the store; or that he sued in his own name to recover'the debts due the concern; or, in fine, to prove any act or declaration on Glover’s part, illustrating the nature or character of his dominion over the goods, or control of the store, whether for himself exclusively, or as partner with Humes. These acts and declarations all constituted a part of the res gestae of the possession itself, throwing light upon, and characterizing its very nature. As such, they are admissible in evidence, when the principal fact of Glover’s possession is itself admissible, as to which there is no contention. They can not be said to be evidence against the defendant, Humes, of the existence of the partnership in question, unless some notice of them was brought to his knowledge; but they are relevant to corroborate, or rebut, as the case may be, other evidence offered to prove the existence or non-existence of such a relationship. The weight and sufficiency of such evidence will be more or less conclusive, according to the circumstances of the entire case; but this is a question for the' jury. It is easy to see, without specific mention, what parts of the testimony of the witnesses, James and McClellan McCutchen, were improperly excluded by the court under this rule.

8. It'wás very clearly not competent to prove the existence or non-existence of the alleged partnership by general reputation. Hogan v. Douglass, 2 Ala. 499. Nor could the character of Glover’s possession be proved by. any general understanding in the neighborhood. — McCoy v. Odom, 20 Ala. 502; 1 Brick. Dig. 847, § 608.

9. The rule is settled, however, that when once a partnership is shown to exist by independent testimony, it is then competent to prove a general reputation or common report of its existence, in order to impute a probable knowledge of such fact to a plaintiff. And for a like purpose, the notoriety of a dissolution may be shown to charge one with notice of such fact. Perhaps the same rule might apply, as contended, to the nonexistence of a partnership in certain cases. • The reason of the rule is obvious. It is based upon the probability that the plaintiff would be likely to know a fact of which no one else in the neighborhood seemed to be ignorant. It should, in our opinion, have no application to persons living at a distance in another State, unless they are shown to have had an opportunity of hearing the common report by frequently visiting the residence of the alleged partners, or otherwise. The prevalence of a local rumor in a country neighborhood in Alabama, without more, would afford no reasonable ground of inference that it was known to the mercantile community of a distant city in Tennessee. What the witness Jamar is shown to have said to the plaintiff, in Nashville, had no reference to any common fame touching the existence or non-existence of the disputed partnership.

10. So, we may further add that, generally speaking, the declaration or act of one partner, not in the presence of his co-partner, as above intimated, is not competent. evidence to-establish the fact of an existing partnership between them, unless such declaration be one against interest made by one deceased, or fall within some other recognized exception to the-rule- excluding hearsay evidence. — Clark v. Taylor & Co., 68 Ala. 454. But, as we have sought clearly to indicate above,, the declarations.of one. partner, strictly explanatory of possession, whether against interest or not, within- the above rule, are admissible in corroboration of other and independent evidence of an alleged partnership.

11. Under these principles, the letter signed by Glover, in the name of Glover & Humes, dated February 20, 1872, was admissible; also, the mortgage from Williams to Glover, if it was given' to secure a debt for goods purchased from the store during the time the business was conducted by Glover. So, it is equally manifest that the note givén by Humes to Ewing, and the - receipt given by the latter, on account of mules purchased for Glover, were inadmissible. Nor can we see that there was any error in the exclusion of what was proposed to be proved by Taylor, the circuit cleric, in reference to defendant’s'efforts .to procure Ledbetter’s testimony ; nor, again, of so much of James McCutchen’s testimony as related to the Settlement between Humes and Glover in reference to the crop grown on the Chapman place in the year 1872. And we are also of opinion that there was no error, under the facts of this case, in excluding proof of the alleged existence of a common report in the neighborhood that Humes and Glover were not partners. The court erred, however, for the reasons above stated, in excluding so much of the witness Harrison’s testimony as related to Glover’s declaration that the stock of goods in the store were his own, and did not belong to Glover & Humes.. But Glover’s statement as to where, or on whose account he had purchased the goods, or any portion of them, being merely narrative of a past transaction, was properly excluded, as. also his declaration of inability to induce Humes to become his security in order to borrow money from the witness Harrison.

12. It is unnecessary for us to consider whether Glover and Humes were partners inter se in the business of farming, under the stipulations of the written contract shown to exist between them. It is clear that this relation could not be held to exist, unless these articles be construed to embrace an agreement for a community of risks, as well as for a distribution of gains. — Mayrant v. Marston, 67 Ala. 453. However this may be, the existence of a partnership for the purpose of farming would not, of itself, authorize the carrying on by one partner, in the firm name, of a store for the sale of merchandise ; for this would be a mercantile partnership, not necessarily or usually incident to the business of farming. — McCreary v. Slaughter, 58 Ala. 230; Story on Part. §§ 111-113, 126.

13. This observation is applicable, only so far as concerns the effort on the part of the plaintiffs in this action to fasten a liability upon Humes, based on the theory of his being an actual partner of Glover. It does not affect the question of liability which may have arisen from the alleged fact that Humes permitted the mercantile partnership to be carried on in his- name. It. is well settled that, although no partnership may exist, yet where one, either expressly or by culpable silence, permits himself to be held out as a partner, and debts are contracted on the faith of this fact with, third persons, he will be held responsible for debts contracted with such persons, if they deal with the alleged firm in ignorance of the true relationship of its members. — Parsons on Part. 71, 412-13; 2 Greenl. Ev. § 283; Nicholson v. Moog, 65 Ala. 471, 472. If, therefore, the jury were satisfied, from all the evidence, that the defendant, Humes, permitted the mercantile partnership to be carried on in the name of himself and Glover, it was not material whether a technichal partnership existed between them in the farming business or not. The contract for farming was relevant, as affecting the business intimacy of the parties, and was admitted as one of many links in' a chain of evidence bearing on the main issue in dispute.

14. It is plain that, if the jury bSlieved the evidence as to Humes’ alleged failure to answer the letters written to him by 'the plaintiffs, in which they treated the firm of Glover & Humes as an existing partnership, and no sufficient explanation is given of such neglect, they would be authorized to treat this silence as in the nature of an implied admission that such a partnership did exist. The charge of the court may have been somewhat misleading, in the use of the word negligence in this connection, instead of failure, dr neglect. So, it should have been submitted to the jury, as a question of fact, whether there was such an admission by the defendant, this being'disputed.

15. It is contended by the appellant, that the telegrams which were introduced in evidence were written instruments, and constituted the contract between the plaintiffs and the defendant, Humes, provided the jury concur in the .belief that the one which Richardson sent was transmitted by Humes’ authority. It is, therefore, insisted that they should have been construed by the court, and not by the jury. This would undoubtedly be true, if the telegrams in question had passed between the parties to this suit, and had been introduced in evidence to prove a contract between them, which was sought to be made the basis of a liability. Such, however, is not the case. The telegrams passed between other parties, and are not introduced to prove a contract between the parties to the present suit. The purpose of their introduction was to show, in connection with other explanatory evidence, that it was believed by certain parties in Nashville that there was such a mercantile firm in Alabama as Glover & Humes; that the plaintiffs reasonably participated in this belief, and were encouraged by Humes in selling goods on the faith of it to the reputed partnership ; or, in other words, that Humes permitted himself to be held out as a partner of Glover in the business of merchandising. It is clear that the plaintiffs derived no technical authority from Richardson’s last telegram, directed to Wright, Hooper & Co., and saying, “ Sell small bill, and on short time;” by which they would be specifically empowered to extend a like credit, even though this dispatch was transmitted by consent of Humes. But it is equally clear that, upon seeing this telegram, they would be authorized to infer that Richardson’s intention was to revoke his first telegram, which disclaimed all knowledge of the existence of the firm or partnership inquired about, and to impliedly assert the fact' of its existence.

16. The court also properly submitted to the jury the inquiry, as to whether or not the telegram from Nashville did not have reference to Glover & Humm, instead of Glover & JSemm, a suggestion which there was evidence tending to prove. It can not be said, as implied in the last clause of the second charge requested by defeifdant, that the plaintiffs had no right to rely or act upon the information derived through the medium of these dispatches. There was no error in refusing to give the first three charges, nor the last charge, numbered five, requested by defendant. So, the fourth charge was erroneous under the principles heretofore discussed.

17. It was improper for the court to assume, as seems to have been inadvertently done in a portion of the general charge, that the defendant had made an admission of the existence .of the alleged partnership. This was a contested fact, and should have been left to the jury.

18. It is quite clear that no restrictions placed by Humes upon Glover’s authority to purchase any thing in carrying on their farming operations could affect the plaintiffs in this action, unless it was shown to have been brought home to their knowledge, in which case it might be relevant to put them on inquiry as to the relations of the alleged partners. If the defendant allowed Glover to carry on a store in his name, either expressly or by culpable silence, and the plaintiffs gave the alleged firm credit on the faith of this fact, it would be immaterial what restrictions had been placed upon Glover’s authority by private agreement, if the plaintiffs were not cognizant of them; and the onus would be on the defendant to show that they were, if the contract sued on be one presumptively within the scope of a partnership carrying on shell a mercantile business, of which latter proposition there would seem to be no doubt.

Eor the errors above specified, the judgment must be reversed, and the cause remanded. We can see no error in the other rulings of the court than those above indicated, and the various assignments based on them are accordingly overruled.

Reversed and remanded..