CarLtoN v. Mays

• Decision Date: 23 February 1875
• Citation: 8 W.Va. 245
• Parties: CarLtoN, Chamberlain & Co. v. Mays & Co
• Court: West Virginia Supreme Court

8 W.Va. 245

CarLtoN, Chamberlain & Co.

v.Mays & Co

Supreme Court of Appeals of West Virginia.

February 23, 1875.

1. A party complaining of the admission of improper evidence must

state the facts or the evidence, in his bill of exceptions, from. which it will appear, affirmatively, to the Appellate Court, that the evidence was improper.

2. Surviving partners are not assignees, in law, of their deceased

partners, and the twenty-third section of chapter one hundred and thirty, of the Code, does not apply to actions against such survivors, where a party defendant is a witness to prove payment to a deceased partner during his life.

Supersedeas, granted on the petition of Ambrose Carlton and James H. Gardner, surviving partners of Carlton, Chamberlain & Co., to a judgment of the circuit court of Greenbrier county, rendered on November 3, 1873. The plaintiffs below were the said petitioners, and the defendants Jonathan Mays, William H. Montgomery and F. T. Montgomery. The material tacts appear in the opinion of the Court.

The Hon. Homer A. Holt, judge of said circuit court, presided at the trial below.

Price & Sperry for the appellants. Robert F. Dennis and Mathews & Matheics for the appellees.

Paull, Judge:

In 1873, the plaintiffs' brought an action of assumpsit in the circuit court of Greenbrier county against the de- fendants, for the recovery of an account for merchandise, and filed a declaration with the common counts. Defendants filed a plea of the statute of limitations, to which the plaintiffs replied generally. The issue was tried before a jury, and, from a bill of exceptions found in the record, we learn that at the trial the defendants introduced William H. Montgomery, one of the defendants, as a witness to prove transactions between him and William P. Chamberlain, one of the partners of the firm of the plaintiffs, who departed this life since the account accrued, the tendency of which was to prove payment of the account aforesaid to the said Chamberlain. To the introduction of said evidence, and to its admissibility, the plaintiffs objected; but the objection was overruled, and the evidence admitted. And this is the first cause of error assigned by the plaintiff. It is said there was no plea which would admit of such evidence; the statute did not admit of the evidence of payment. The bill of| exceptions, however, states neither the facts proved or the evidence. In the case of Johnson's Exor. v. Jennings' Admr., 10 Gratt. 1, the syllabus recites:" A party complaining of the admission of improper evidence must state the facts in his bill of exceptions, from which it will appear, affirmatively, to the appellate court that the evidence was improper." In that case, as in the case before us, a verdict was found for the defendant on a plea of the statute of limitations. On the trial a witness was asked a question, to the answering of which the plaintiff objected; but the objection was overruled, the question was answered, and the plaintiff excepted The question was:" Do you know of any money received by John F. Johnson, the defendant, in his life time, for Philip Jennings?" It did not appear from the bill of exceptions what answer the witness gave to the question. Moncure, J., says, in delivering the opinion of the court:" In this case the court is asked to presume: first, that the question was answered, and then that the answer was of such a nature as to be inadmissi- ble. But the answer could have no influence on the issue on the plea of the statute of limitations, on" which alone a verdict was found for the defendant, and could not, therefore, have prejudiced the plaintiff." And the same observation may be...