Chouteau v. Searcy

• Citation: 8 Mo. 733
• Parties: CHOUTEAU v. SEARCY.
• Decision Date: 31 July 1844
• Court: United States State Supreme Court of Missouri

8 Mo. 733

CHOUTEAU

v.SEARCY.

Supreme Court of Missouri.

July Term, 1844.

APPEAL FROM ST LOUIS CIRCUIT COURT.

GAMBLE and BOGY, for Appellant. 1. To maintain the action, the plaintiff had to prove that the defendant was a member of the firm of Fontenelle, Fitzpatrick & Co., the drawers of the bill on which this suit is founded. To charge a person as a partner, one of two things is necessary; he must have permitted his name to be used as one of the firm, or he must have participated in the profits or loss. Osborn v. Bremer, 2 Nott & McCord's R. 427; Shubrick v. Fisher. 2 Dessansure, 148; Gould v. Gould, 6 Wend. 263. 2. The letters read by the plaintiff do not prove a partnership between the drawees of the bill and the defendant, especially as they were written nearly a year after the bill of exchange on which this suit was brought was drawn. 3. No testimony was introduced about a participation in the profits. 4. If there was no proof of a partnership existing between the defendant and the firm of Fontenelle, Fitzpatrick & Co., the court ought to have given the instruction prayed for by the defendant before any testimony was given by the defendant. Russell v. Barcroft, 1 Mo. R. 662-3. 5. The 1st and 5th instructions given by the court are erroneous; the first is too general, and calculated to mislead a jury, and the fifth was not sustained by any testimony given in the case. Cleaveland v. Davis, 3 Mo. R. 331-2. 6. The instruction in relation to the admissibility of Mr. Sarpy's testimony was improper, as it presented a different issue to the jury from the one they were sworn to try; and it was purely and alone a question for the decision of the court. Fugate & Young v. Carter, 6 Mo. R. 267; Newman v. Lawless, ibid. 279; 1 Phillips on Ev. 18. 7. Sarpy was a competent witness. 8. The declaration of Fontenelle to Daugherty (see D.'s deposition) ought not to have been received as evidence. 9. For, although the declaration of each member of a firm, that he is a partner, is evidence to charge himself, it is no evidence of the fact against any other party. 2 Starkie on Ev. 25, 287; Whit ney v. Ferris. 10 Johns. R. 66; Sweetney v. Turner, ibid. 216. See the case of Dixon, impleaded with Russell & Christy v. Hood, 7 Mo. R. 414, where the doctrine is examined. 10. The rule of court read and relied upon by the plaintiffs did not preclude the objection from being made to Daugherty's deposition, at the time it was made; but on the contrary, it is expressly provided in the rule, that exceptions, on the ground of competency, may be made at any time. 11. If the exception to Daugherty's deposition had been sustained, there would have been no testimony to support the fifth instruction given by the court. 12. The evidence so strongly and decidedly preponderates against the verdict, that a new trial ought to have been granted. Singleton v. Mann, 3 Mo. R. 464; Clemens v. Laville & Morton, 4 Mo. R. 80; Dooly & Kirkland v. Jinnings, 6 Mo. R. 61.

TOMPKINS, J.

This is an action of assumpsit, brought in the Circuit Court of St. Louis county, by Leonard Searcy, against Pierre Chouteau, junior. Judgment was given for Searcy, and, to reverse it, Chouteau appeals to this court. The action is founded on a bill of exchange, dated 16th of May, 1834, and alleged to have been drawn by Chouteau, as one of the firm of Fontenelle, Fitzpatrick & Co., on Pratte, Chouteau & Co. To prove a partnership between Chouteau and Fontenelle, Fitzpatrick & Co., the plaintiff produced several witnesses, who testified, that many drafts similar to that here sued on were drawn by the drawers of this bill. on Pratte, Chouteau & Co., in favor of different persons, during the year 1835, and were duly paid, some by Chouteau himself, and others by Pratte, Chouteau & Co.

One Daugherty, for the plaintiff, testified, that he had learned from said Fontenelle, that the consideration of the draft in question was horses, wagons, &c., got for the mountain trade, from Searcy, the plaintiff, and that the firm of Pratte, Chouteau & Co. ought to have accepted the draft; that his general course of trade was through Pratte, Chouteau & Co., as he always understood, on which firm he was in the habit of drawing drafts, and his credit on the frontier was based exclusively on the credit of Pratte, Chouteau & Co. The same course of business, he always understood, was pursued by Fontenelle, Fitzpatrick & Co., during the years 1835 and 1836. It was in evidence, that Fontenelle had drawn on Pratte, Chouteau & Co. before he became associated with Fitzpatrick and others. The defendant excepted to the evidence given by Daugherty. The defendant produced one John B. Sarpy, who, being examined on his voir dire, stated, that he did not know whether he was interested in the event of the suit or not, and could not say whether he would be a gainer or loser by the disposition of the suit or not; that he was now a partner of Mr. Chouteau's; that he lived with Pratte, Chouteau & Co. in 1835; he was not certain, and could not say, whether he had an interest in the profits of the concern of Pratte, Chouteau & Co. at that time, or not. The court permitted him to give evidence to the jury, but afterwards stated to the jury that they must disregard his testimony on the ground of interest, if they find that he was a partner, or interested in the profits of the house of Pratte, Chouteau & Co., at the time the draft was drawn. The defendant excepted to this decision of the court. The firm of Fontenelle, Fitzpatrick & Co., according to the plaintiff's evidence, was composed of Fontenelle, Fitzpatrick, Drips, Sublette, and Bridgor.

The plaintiff also read in evidence two letters proved to have been written by Chouteau, for the purpose of proving that Chouteau was, at the time of drawing this draft, a partner in the firm of Fontenelle, Fitzpatrick & Co. These letters bear date, one in March, 1836, the other in April of the same year; by the latter it appears, that Pratte, Chouteau & Co. (of whom ...