Smith v. Hulett

65 Ill. 495

Opinion

Mr. Justice Sheldon

delivered the opinion of the Court:

This was an action of assumpsit, commenced against Franklin W. Smith, John Bishop and Justus Griffin, to recover.for work and labor. Smith and Bishop only were served with process. Griffin was not served, nor did he appear to the action. Smith and Bishop each filed a plea of the general issue.

The defendants, Smith and Bishop, were sought to be charged by virtue of an alleged partnership between them and Griffin.

A large amount of testimony was produced to establish the existence of the partnership, and in fact it was the real question at issue.

On the trial, against the objection of the defendants, the declarations of Griffin were admitted in evidence to prove the fact of partnership. One error assigned is the admission of such testimony.

Griffin, although his name was included in the summons, never having been served with process, was not a party to the suit. Ho judgment could have been had against him, and a judgment against the other two, under our statute, would be regular, without noticing him. Hothing was required to be proved as against him, in order to obtain a judgment against him. If there had been, his admissions would have been competent. But the proof was only to be made as against Smith and Bishop, in order to recover a judgment against them. Although the partnership between the three was to be proved, it must have been done by competent evidence. As against Smith and Bishop, the declarations of Griffin were not competent evidence to prove a partnership.

One man can not thus affect another by his declarations.

If Griffin had been a party to the suit, his declarations would h,ave been admissible as'against himself, where material to obtain a judgment against him; but as he was not a party, there is no ground upon which they could be let in to.; prove the fact of partnership. 1 Greenleaf Ev. sec. 177; Degan v. Singer, 41 Ill. 28; Gardner v. N. W. M. Co. 52 id. 368; Dutton v. Woodman, 9 Cush. 256 ; Allcott v. Strong, id. 325; Robbins v. Willard, 6 Pick. 464; Hahn v. St. Clair S. and Ins. Co. 50 Ill. 457.

Because of the admission of this testimony, the judgment must be reversed and the cause rémanded.

Judgment reversed.