Smith v. Perrario

• Decision Date: 19 July 1901
• Citation: 39 S.E. 428,113 Ga. 872
• Parties: SMITH . v. PERRARIO.
• Court: Georgia Supreme Court

39 S.E. 428

113 Ga. 872

SMITH .

v.PERRARIO.

Supreme Court of Georgia.

July 19, 1901.

PARTNERSHIP—EVIDENCE—DECLARATIONS.

1. Since the fact of the existence of a partnership cannot, as against one denying it, be lawfully shown by declarations of another alleged member of the firm, an instruction which warranted the jury in giving to evidence of this character such an effect was erroneous.

2. Although the evidence in the present case may have required a finding that the plaintiff in error held himself out to the payee of the promissory note sued on as the partner of him who signed the alleged firm name thereto, and there was sufficient evidence to warrant, though the same did not demand, a finding that the payee acted thereon in the transaction represented by such note, yet as it cannot be ascertained whether the verdict in favor of the plaintiff was rendered on the proof of a general partnership, or because of such representations, it must, because of the error above pointed out, be set aside.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action between H. H. Smith and G. Ferrario. From the judgment, Smith brings error. Reversed.

Chas. T. Hopkins and Danl. W. Rountree, for plaintiff in error.

Slaton & Phillips, for defendant in error.

LITTLE, J. A material question of fact raised by the pleadings was whether a partnership existed between plaintiff in error and one A. N. Ivancich, and that question was by the jury determined against the former. He complained in his motion for a new trial that the verdict rendered was contrary to the evidence, and that the judge erred in certain rulings of law, and that he was therefore entitled to a new trial. It is contended on the part of the defendant in error that the evidence was sufficient to show that a partnership did exist between Smith and Ivancich, but, in the event this conclusion was not de manded by the evidence, that, as to the defendant in error, Smith is estopped from denying its existence, because of representations made by him to Ferrario that the partnership existed, and that the latter acted upon such representations. After a careful investigation of the evidence contained in the record, we are very clear that the jury trying the issue would have been fully authorized to find the fact to be that a partnership existed. The admissions contained in certain letters written by Smith to Ferrario, copies of which are found in the record, are clear and explicit that such a partnership did exist, and these admission? were of themselves amply sufficient to support such a finding; but it cannot be said that the evidence on this subject, as a whole, demanded such a finding, because Smith himself was a witness in the case, and testified in equally as clear and direct terms that Ivancich was not his partner, that no such partnership ever existed, and that Ferrario knew it. Hence, while the jury would have been authorized to find, under the admissions made, that the partnership existed, they were not compelled to do so. "It therefore becomes material to determine whether the trial judge committed any error of importance sufficient to require the verdict to be set aside. It is alleged that he erred in giving to the jury the following charge: "Now, you take all the evidence in the case, gentlemen, and admissions that are before you, and any other evidence that will Illustrate the question, —any direct evidence, circumstantial or otherwise; any evidence that will illustrate the question, —and weigh it all, and say whether the evidence shows a partnership existed between Mr. Smith and Mr. Ivancich, as...