Montgomery v. Black

25 Ill. App. 22, 1886 Ill. App. LEXIS 511

• Court: Appellate Court of Illinois
• Decided: February 17, 1887
• Status: Published

Opinion

Congee, J.

This was an action for assumpsit to recover upon a promissory note of $100, and a balance upon a bank account of $1,034.02, brought by appellants against William L. Black, Samuel IT. Black and Charles C. Conner. The declaration charged that the two Blacks and Conner were partners, under the name and style of W. L. Black & Company, and as such liable for the note and bank account.

William L. Black was never served, and, so far as we can find from an inspection of the record, his appearance was not entered.

Samuel 34. Black and Conner each filed a plea in abatement denying, under oath, their joint liability with the co-defendant. Upon these two pleas issue was joined, and the court below, a jury having been waived, found the issues for appellees, Samuel if. Black and Conner, and rendered judgment against appellants for costs.

The vital question raised by these pleas was, whether appellees, Conner and Samuel N. Black, were members of the firm of W. L. Black & Company. The evidence upon this point is quite voluminous, and it would subserve no good purpose to discuss it, as we see no good reason for interfering with the conclusion reached by the Circuit Court.

There were admissions and declarations of appellees and William L. Black as to who composed the firm of W. L. Black & Company admitted in evidence upon both sides of the controversy that we regard as incompetent testimony.

The existence of the partnership, as we have said, was the issue being tried, and in such case the admissions or statements of one defendant, in the absence of his co-defendants, in reference to the ex'stence of the partnership, are -inadmissible against his co-defendants. Hahn, etc., v. St. Clair S. & Ins. Co., 50 Ill. 456; Gardner v. N. W. M. Co., 52 Ill. 367.

Especially was it error to admit the statements of W. L. Black, who was not served, and was not appearing in the case, as to the issue of partnership, against Samuel N. Black and Conner. Smith v. Hulett, 65 Ill. 495.

The admission of this evidence being at the instance of appellants, and, if regarded by the court at all, being for their benefit, is not a matter of which they can be heard to complain.

The conclusion reached by the court below, we think, was justified by the proper evidence in the case and, therefore, the judgment of the Circuit Court will be affirmed.

Judgment affirmed.