Tucker v. Peaslee

36 N.H. 167

Opinion

FowleR, J.

It seems conclusively settled by the weight of authority, that if, in the present case, the one hundred and fifty dollars, borrowed by the defendant of Blye, were in fact obtained for the firm and appropriated by them to their own use, the indebtedness therefor was a firm debt, although the defendant’s note alone was taken for it, and although Blye supposed he was loaning the money to the defendant, and actually gave the credit to him. The authorities are uniform in maintaining the doctrine that where the principal is unknown to the vendor at the time of a sale, he may, upon discovering the principal, resort to him for payment, although, in the absence of such knowledge, the credit may have been given to the agent alone, and his individual note alone have been taken for the debt. Story on Agency 291; Paterson v. Gandasequi, 15 East 62; Raymond v. Crown and Eagle Mills, 2 Metcalf 324 ; Thompson v. Davenport, 9 Barn. 6 Cress. 78.

The same principle, which seems to have been uniformly applied to the case of principal and agent, is equally applicable to that of an individual partner and his firm. Each partner is an authorized agent for the firm; and if the individual partner obtain money or goods on his own credit for the use of the firm, without disclosing the interest of the partnership in the transaction, the debt contracted is the debt of the firm, notwithstanding the note of the individual partner alone may have been given and taken therefor. Smith & Lougee v. Smith & Bannister, 7 Foster (23 N. H.) 253 ; Reynolds v. Cleveland, 4 Cowen 282; Griffith v. Buffum, 7 Wash. 181; Muldon & al. v. Whitlock, 1 Cowen 290 ; Brown v. Sewley, 2 B. & P. 518 ; Sehermerhorn v. Loines, 7 Johnson 311 ; Saville v. Robertson, 4 D. & E. 720 ; Hoare & als. v. Dawes & al., Douglass 371; Jaques v. Marquand, 6 Cowen 497 ; Everett v. Chapman, 6 Conn. 347.

Any evidence, therefore, going to show that the firm, consisting of the plaintiff and the defendant, received and appropriated the money, or in any other way recognized and treated the one hundred and fifty dollars indebtedness to Blye, or the defendant’s note given for it, as the debt of the firm, was competent and'appropriate to sustain the defence relied upon ; for such evidence would have been competent and proper to have enabled Blye to maintain an action against the firm, for the money originally loaned to the defendant alone. In this view the court very properly instructed the jury that if the plaintiff, at the time he received the note of Blye, understood that it had been given for money borrowed for the partnership and used in the partnership business, and it was then understood by both partners that it was a partnership debt, and recognized and treated by them as such, the plaintiff could not recover.

The case finds that the plaintiff paid Blye for the note in April, 1846, by conveying to him the store in which the partnership business had previously been carried on ; while, in the same way, and at the same time, he paid him the hundred dollar note, which, upon the evidence, must be considered to have been a partnership debt. Now, it is too clear to need illustration or the citation of authorities, that if the plaintiff and defendant then regarded and treated the $150 note as a partnership debt, given for money used in the business of the firm, and the plaintiff paid it as such, the note was/awciwa officio, and could not afterwards be revived or negotiated by Blye to the plaintiff, as a valid, subsisting note; and whatever other remedy the plaintiff might have, if it turned out that the note had been paid by him wrongfully, or through mistake, he could not obtain redress through a suit upon a defunct note, transferred to himself nearly five years afterwards, apparently for the sole purpose of enabling him to institute a suit thereon in his own name against the defendant.

The court further instructed the jury, that if they found any other or different state of facts than that specified in the instructions to which we have just referred, the plaintiff was entitled to their verdict. This part of the charge was at least sufficiently favorable to the plaintiff, and included substantially the instruc tions asked for by him, and more. Where the instructions given to the jury embrace substantially those asked for by the party, although in different language, the refusal to give the instructions requested, in the precise language suggested, although they may have been proper, is no sufficient cause for setting aside the verdict. The precise words used are immaterial, unless calculated to mislead the jury, and the court is entitled to select its own phraseology. Here the court in effect instructed the jury to return their verdict for the plaintiff, unless they found, among other things, that the plaintiff had actually paid the $150 note to Blye as a partnership debt, understanding it to be such at the time of payment. Now, it is quite clear that the plaintiff cannot rightfully complain that he was injured by the instructions so given. The wrong done was to the other party ; for it is very evident that if the note were actually a partnership debt, and given for funds appropriated by both partners to the use of the firm, and the plaintiff paid it, whether he understood at the time of payment that it was a partnership debt or not, he could not afterwards, by obtaining a transfer thereof to himself, collect the whole amount of his partner. Edgerly v. Emerson, 3 Foster (23 N. H.) 560, and authorities there cited.

So, too, we think the instructions of the court in relation to the entries made by either or both the partners, or their authorized clerks, on the partnership books, in the regular course of their business, during the. continuance of the partnership, to have been strictly correct. Entries made by one partner during the partnership, in a book of accounts, are admissible evidence against, and bind both, on the principle that each partner is an authorized agent of the firm. Walden v. Sherburne, 15 Johnson 409. It was the duty of the defendant, If he received money of Blye for the partnership, to enter, or cause to be entered, the receipt thereof in the books of the firm, so that the same might be open to the inspection of the plaintiff. And such entry having been made by the common agent of both partners, is evidence against both, whether both knew of its existence or not. A memorandum in writing in the books of a company, made by an agent of the parties and at their request, is evidence for or against them, and for and against all parties claiming under them. New-England Manufacturing Co. v. Vandyke, 1 Stockton 498. In an action by a hank against a depositor for having overdrawn, the books of the bank are competent evidence to show receipts and payments of money, the officers of the bank being so far the agents of both parties. If the clerk who made the entries is dead or insane, the book itself is admissible, upon proof of his hand writing. Union Bank v. Knapp, 3 Pick. 96. Entries made by clerks, in the usual course of business, are admissible, when the clerks are deceased. Brewster v. Doane, 2 Hill 537. Rooks of account, kept by a deceased clerk, and other entries or memoranda, made in the course of business or duty, by any one who would at the time have been a competent witness to the facts he registers, are admissible evidence after his death. Butre v. Simpson, 4 Ala. 305.

We think, moreover, that the testimony of Blye in relation to the loan of the hundred dollars, and the fact that this hundred dollars was entered upon the books, as borrowed by the firm of Blye, were matters competent for the consideration of the jury. They had some tendency, however slight, in connection with the conceded facts, that the two loans were the only ones made by Blye to the partners or either of them, that both notes were paid by the plaintiff at the same time and in the same way, and that the hundred and fifty dollar loan was entered both in the cash and bills payable book, in the same manner as the hundred dollar loan, as a loan to and the debt of the firm, to show that the one hundred and fifty dollars were actually obtained for and appropriated to the use of the, firm, although the individual note of the defendant alone had been given and received therefor. And this tendency was legitimate. The hundred dollar loan, though made to the individual partners on their joint note, if not admitted, seems to have been clearly proved to have been contracted and paid as a partnership debt. The hundred and fifty dollar loan, though made on the note of the defendant alone, was shown to have been repaid by the plaintiff at the same time, from the same fund, and without any transfer of the note originally given for it, as the indisputable debt of both partners. Whether he actually regarded and paid it, and whether it had been recognized and treated by the firm, and in fact was a partnership debt, were material and important questions. That both loans had been entered on the partnership books, at their respective dates, in the same ways and in the regular course off business, either by the partners themselves or their clerks, and had both been paid at the same time and in the same way by one of the partners, were circumstances, not irrelevant, or immaterial, or unimportant, in arriving at a proper conclusion as to their real character. The entries on the partnership books were clearly competent, on the principle before adverted to.

As the case stands, containing nothing in any'manner connecting Boston with the business of the firm, or the hundred and fifty dollars borrowed by the defendant with his journey thither, or any business transacted by him for the firm there, the testimony of Blye, that, when the defendant borrowed the hundred and fifty dollars of him, he was about going to Boston, and immediately after left home in the cars for Boston, would seem to-have been entirely ■ irrelevant and immaterial, and consequently improperly admitted. We cannot perceive any possible legitimate bearing the fact of the defendant’s being about to visit Boston at the time of the loan, and immediately thereafter, carrying that purpose into execution, could have had on the question whether or not the money was obtained for and applied to the uses of the firm, or whether it had been regarded and treated by the partners or paid by the plaintiff as a firm debt. But we are also unable to see that this evidence,. although improperly admitted, could have had any influence, proper or improper, upon the plaintiff’s claim or the defendant’s defence. It does not seem to have been at all calculated to excite prejudices, or raise false impressions, or exercise an undue control over the minds of the jury, but appears to have been wholly immaterial, in the broadest sense of that term. Its improper admission does not therefore form any sufficient cause for setting aside the verdict. Winkley v. Foye, 8 Poster (28 N. H.) 519 ; Same Case, 83 N. H. 171.

The defendant excepts to the competency of the testimony of John Noyes, as to the declarations of the boy who came after the partnership hooks and took them away. The case finds it to have been a material question on the trial whether certain entries, made in those books after the dissolution of the firm, were so made by the direction of the plaintiff, or of the defendant; that those entries were in the hand writing of Dearborn, a deceased clerk of the firm; that the defendant’s evidence tended to show that Dearborn resided with, and did writing for the plaintiff, a considerable length of time after the-dissolution of the firm; and Noyes testified that, while Dearborn was thus resident with the plaintiff, a boy, who was at the same time living with the plaintiff, and whom he at first thought to have been the Scott boy, came to the defendant’s shop, and declaring that the plaintiff wanted the company books, obtained and carried away with him two or more of those books, and they were gone from the shop a week or more. The main material question was, whether certain entries, in the hand writing of Dearborn, were made by direction of the plaintiff or defendant. As preliminary and incident to that question, it was important and material whether the plaintiff or defendant, at any time after the dissolution, had such possession or control of the books, in the presence of Dear-born, that the entries might have been made by the direction of one or the other. The plaintiff denied that he had ever had access to them, so that he could have directed the entries, and asserted that the defendant had always had the exclusive custody and control of them. It was with a view to refute this denial, disprove this assertion, and show such possession and control of the books by the plaintiff as would have enabled him to direct the entries, that the testimony of Noyes and other evidence was offered by the defendant. Regarding these positions of the parties, it was material that the books passed from the possession of the defendant, and came, probably, into that of the plaintiff. The means by which they left the custody of one and came into that of the other, were, therefore, relevant and material. Noyes testified that a hoy, who was living with the plaintiff at the same time the deceased clerk, Dearborn, worked there, came and got the hooks, saying that the plaintiff wanted them; that, upon making this declaration, he was permitted to take the hooks, and they were gone a week or more. The facts proved by Noyes were relevant and material, in view of the positions taken by the parties before the jury, independently of what the boy said accompanying those facts; his declarations related to those facts, accompanied and were strictly explanatory of them, and therefore, on well settled principles, admissible as part of the res gestos. Hadley v. Carter, 8 N. H. 40 ; Sessions v. Little, 9 N. H. 271; Morrill v. Foster, 82 N. H. 860, and authorities.

The various objections and exceptions, made and taken, being overruled, there must be

Judgment on the verdict.