Ryder v. Jacobs

46 A. 667, 196 Pa. 386, 1900 Pa. LEXIS 529

• Court: Supreme Court of Pennsylvania
• Decided: May 29, 1900
• Docket: Appeal, No. 232
• Status: Published

Opinion

Opinion by

Mr. Justice Dean,

This case was here before on appeal by defendant, see 182 Pa. 624, and was reversed because of misdirection by the court on the question of the effect on the issue of a partnership, if proven. It is not necessary to here repeat the facts as stated on that appeal; the case in the court below was then made to turn on the fact of partnership, and no significance was given to the evidence on part of defendant by the court that even if there was no'partnership, there was evidence that plaintiff was to be paid solely out of profits; therefore, his right to recover depended on whether there were any profits during the term of his employment, and if so, what amount. The case went back for retrial, and was tried in accordance with our opinion as to the proper effect to be given to the fact of a partnership, if one existed; the verdict was for defendant, and we now have this appeal by plaintiff who assigns to rulings on offers of evidence and charge of the court, twenty-two errors.

The principal error assigned, and the one on which most stress is laid by appellant, is the first. The court correctly defined a partnership, and what facts in law were necessary to constitute' it, and then said: “ But the question as to the existence of the constituent elements of a partnership is a question of fact for the jury, and we leave that question with them.” It is argued, that on the evidence, this instruction was misleading, as the defendant himself testified there was no partnership. We think the learned counsel for appellant is not exact in his statement of the fact; defendant testified positively, that plaintiff, for his services, was to receive as compensation half the profits and that he was a partner in the profits. The mere agreement to give Ryder half the profits for his services, did not, of itself, constitute him a partner as between themselves, but there was other evidence, such as the conduct of Ryder in the business, the authority he exercised over it, and his alleged declarations to third persons, that he was a partner, which effectually prevented the court from deciding as a question of law, that there was no partnership. The conflicting evidence, and different inferences that might be drawn therefrom, necessarily put the ease before the jury. The many authorities cited by appellant are all to the point, that the mere receipt of a share of the profits, without more, does not establish a partnership. This, the learned judge of the court below distinctly announced to the jury as the law; at the same time, he instructed them, that if the agreement was that after they went into the new building, Ryder was to be a partner and was to receive one half the net profits, after deducting all expenses, including interest on capital, then he could recover only one half the profits, and that he would have to sue for in equity by a bill for an accounting. There was no error in this instruction ; the court was bound by the evidence before it to so instruct the jury. The first assignment is overruled.

The second, third and fourth assignments complain that in its charge, the court made the whole case to turn on plaintiff’s claim for services, leaving out of view his evidence tending to prove that he had loaned defendant $1,900. The charge itself negatives this assignment; the court after stating that plaintiff claimed to recover $1,900 as a loan, and that he had presented testimony tending to establish the fact, further calls their attention to Jacobs’s testimony, positively denying that such loan was made. This left the credibility of the two witnesses to be judged of by the jury, and that was as far as the court could go.

The fifth assignment alleges that in answer to defendant’s fourth point, the court assumed as a fact, that which was not a fact. This allegation is not sustained by the record. The point asked the court to say to the jury, that if a remittance of $1,000 by Ryder to Jacobs, was not a loan but to make good an overdrawn account, there could be no recovery for this item. The court affirmed the point, but no fact was assumed; if the jury found the fact, which was all the point requested, then they should not allow plaintiff credit for the $1,000. The answer was correct. The sixth assignment, in substance, raises the same question as the fifth, and. is also overruled.

The seventh and eighth assignments complain of “nagging” plaintiff on the witness stand, whatever that may mean, by defendant’s counsel on cross-examination. Undoubtedly, counsel may, and perhaps too often do, exceed the bounds of courtesy and orderly examination; this, however, is always controllable by the trial court, and unless it plainly appeared, that the court in a proper case neglected to exercise its power, we would not convict of error. A careful inspection of the reported testimony fails to convince us that counsel went beyond the proper limits of cross-examination in this instance. These assignments are overruled.

The ninth to the twentieth assignments, inclusive, complain that defendant was permitted to put before the jury his own entries in books and accounts, which entries were highly prejudicial to plaintiff. Generally such evidence is not admissible; but take the facts before the court at the trial; it was established that both plaintiff and defendant had access to, control over, and the right to make entries in them; that the handwriting of both is intermingled on the same day on the same page; that each drew checks, and made memoranda on the stubs. Jacobs had made entries of payments as salary to Ryder; it followed, as a probable inference, if not a necessary one, that Ryder saw these entries about the time they were made, yet did not protest against them; if they were not correct, he should have objected; his silence, until after their business relations were severed, was some evidence that they were correct. In this view, the entries in the books were evidence for the consideration of the jury. All these assignments are overruled.

The twenty-first assignment complains that plaintiffs offer to prove by defendant, that the latter, after the severance of his business relations with plaintiff, had been sued as an individual, and had made an affidavit of defense individually was overruled. We do not see the relevancy of the fact; defendant might have filed a plea in abatement to such suit, averring a partnership liability with Ryder when the alleged debt was contracted, or he might choose to treat himself as the plaintiff in the suit treated as individually liable and make his affidavit to the merits. It was, a matter of option with Mm, and neither made for nor against Mm in this issue.

The twenty-second assignment is not pressed.

On the whole case we detect no error which calls for a reversal, and the judgment is therefore affirmed.