Bowen v. Robert Rutherford.

• Decision Date: 30 September 1871
• Parties: JAMES H. BOWEN et al.v.ROBERT RUTHERFORD.
• Court: Illinois Supreme Court

60 Ill. 41

1871 WL 8082 (Ill.)

14 Am.Rep. 25

JAMES H. BOWEN et al.

v.ROBERT RUTHERFORD.

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action of assumpsit brought by James H. Bowen, George S. Bowen, Chauncey T. Bowen and George R. Whitman, in the Superior Court of Cook county, against Robert B. Rutherford and Robert Rutherford, upon certain notes purporting to have been executed by the defendants as partners. There was a default entered against Robert B. Rutherford, but Robert Rutherford filed pleas: first, the general issue; second, a plea that he was not a partner of the other defendant, and was not jointly liable; third, a plea denying the execution of the notes. These last two pleas were verified by affidavit. A trial was had by a jury, resulting in a verdict in favor of Robert Rutherford. A motion for a new trial was overruled, and a judgment on the verdict, from which this appeal is prosecuted. Messrs. THOMPSON & BISHOP, for the appellants.

Mr. JOHN W. KREAMER, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

There was no error in the rejection of the evidence offered, that appellee held himself out as a member of the firm.

The offer was too general, and the only inference to be drawn from it is, that the design was to prove the partnership by general reputation, and thus make both defendants liable for the act of one.

Such testimony was held competent in Whitney v. Sterling, 14 Johns. 214, and in McPherson v. Rathbone, 11 Wend. 97.

In the first case, the court remarked that there was no objection to the testimony of general reputation, and it must therefore be considered. In the last case, it is simply said that it is undoubtedly competent to prove the partnership by general reputation.

No authority is referred to in either case, and no argument offered in favor of the rule established.

The propriety of these decisions was seriously questioned in an able opinion by Cowen, J., in Halliday v. McDougall, 20 Wend. 81.

He said: “There is scarcely a question upon which common reputation is more fallible. A contract of partnership is, in its nature, incapable of being defined by laymen; and whether an apparent partnership be really so, or a contract of some other character, is often a most embarrassing legal question with the ablest lawyer. General reputation of the more ordinary contracts, the legal nature and effect of which are understood by men of business in general, would be a much more proper subject of proof by general report. This, the law always rejects, and yet I am not aware that there is any necessity for a resort to such proof, in the one case more than the other.” We have been furnished with no authority in favor of the rule, and are aware of none, either English or American, which goes to the extent of the earlier cases in New York.

In Brown v. Crandall, 11 Conn. 92, it was decided that general reputation was inadmissible to prove a partnership. In this case, the court said: “A person of doubtful credit might cause a report to be circulated that another person was in partnership with him, for the very purpose of maintaining his credit. His creditors also might aid in circulating the report for the purpose of furnishing evidence to enable them to collect their debts.” See, also, Bryden v. Taylor, 2 Harr. & Johns. Md. 396.

It is a fundamental principle of the law of evidence, recognized and approved from the earliest times, that hearsay is not generally to be admitted in courts of justice. There are certain exceptions to the rule, but reputation of partnership has never been regarded as one of them.

The exceptions have been allowed, because it has been supposed that greater inconvenience might arise from the exclusion than the admission of the exception.

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