Cooper v. Wood

• Citation: 27 P. 884,1 Colo.App. 101
• Parties: COOPER v. WOOD et al.
• Decision Date: 12 October 1891
• Court: Court of Appeals of Colorado

27 P. 884

1 Colo.App. 101

COOPER v. WOOD et al.

Court of Appeals of Colorado

October 12, 1891

Error to Lake county court; WILLIAM R. HALL., Judge.

H.D Wood and others sued Isaac Cooper and C.H. Tibbetts as partners for a firm debt. Pending the suit, Cooper died, and his wife, Sarah F. Cooper, as administratrix, was substituted. Judgment for plaintiffs. Sarah N. Cooper appeals. Reversed.

J.E Havens and Bennett & Bennett, for plaintiff in error.

C.S Libby, for defendants in error.

REED J.

If this were not a case affecting the estate of a deceased person requiring a speedy termination, to enable a settlement of the estate at as early a date as practicable, we should be obliged to dismiss the suit, under the rules of the court, for want of a proper abstract. What purports to be an abstract contains nothing but a copy of the pleadings, and what counsel call a summary of the assignment of errors. Nearly every supposed error arose upon the admission and rejection of evidence, yet the abstract contains no evidence whatever upon the admission and rejection of which errors are assigned, and no reference to the folios or pages of the record where it can be found; but, under the circumstances of this particular case, the rule will be waived, hoping such irregularities will not again occur. The suit was brought by defendants in error (partners) against Isaac Cooper and C.H. Tibbetts, as partners, to recover the balance due upon goods alleged to have been sold to the defendants. Service was had upon Isaac Cooper, but none upon Tibbetts. The complaint is in the ordinary form, alleging a balance of $558 and interest to be due, and asking judgment. The answer of the defendant Cooper, after denying every allegation of the complaint generally, specifically denies the existence of the partnership of the defendants, and avers that in June, 1880, and before the debt sued for was contracted, he, the defendant, notified the plaintiffs that no partnership existed, and forbade any sale of goods to Tibbetts on his responsibility. It is also further averred in the answer that plaintiffs afterwards settled with Tibbetts individually for the amount due, including the claim in this suit, and took the individual note of Tibbetts and a trust-deed upon real estate to secure the payment of the note; that the plaintiffs accepted and received the same in satisfaction of the original indebtedness of Tibbetts. In reply, plaintiffs reassert the partnership of defendants, admit the settlement made with Tibbetts, and the taking of his note and the deed of trust as security, but aver it to have been as collateral security only, and allege the nonpayment of the note, and a failure to realize anything upon the security. Previous to the trial, defendant Cooper died, and plaintiff in error, as administratrix, was substituted. It also appears from the record that during the trial counsel of defendants moved the court for leave to amend the answer by alleging that the individual note of Tibbetts was further secured by a chattel mortgage upon personal property, and leave to amend was denied by the court. Trial was had to the court without a jury, resulting--as near as it can be understood--in a judgment against the supposed firm of Cooper & Tibbetts for the sum of $1,008.50, and judgment for like amount against the estate of Cooper, deceased. The existence of the partnership between the defendants having been directly and specifically put in issue, plaintiffs, in order to recover against the estate of Cooper, were obliged to establish it affirmatively. An attempt was made to establish it by secondary evidence, such as general reputation, circumstances, etc., but this class of loose, indefinite testimony of circumstances, common report and reputation "is not admissible, except in corroboration of previous testimony, unless it be to prove the fact that the partnership otherwise shown to exist was known to the plaintiff." 2 Greenl.Ev. § 483. Numerous other authorities might be cited, but the proposition is so elementary and well understood it is unnecessary.

Tibbetts the supposed partner, was put upon the stand as a witness for the plaintiffs, and testified: "I lived in Bowman, Gunnison county, Colorado, in 1880 and 1881, and was engaged in merchandising. Had a partner in the business,--Isaac Cooper, now deceased." This was the only direct testimony to establish the partnership which was found by the court. This was error. The supposed partner was not competent as a witness to establish the partnership. Section 4816, c. 132, Mills' Ann.St., is as follows: "That no party to any civil action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein, of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of an idiot, lunatic, or distracted person, or as the executor or administrator, heir, legatee, or devisee of any deceased person, or as guardian or trustee of any such heir, legatee, or devisee, unless when called as a witness by such adverse party so suing or defending." This is a copy of the statute of the state of Illinois. I can find no case in our own Reports where the exact question has been determined, but it has been adjudicated and construed in that state, and directly held that a surviving partner was incompetent, by reason of his interest. See Langley v. Dodsworth, 81 Ill. 86; Hurlbut v. Meeker's Ex'x, 104 Ill. 541. The latter case is directly in point. It is said in the opinion, after quoting the statute: "Under this statute we are satisfied that neither J.D. Hurlbut nor D.N. Hurlbut was a competent witness for the plaintiff. They were not made defendants in the action, but were directly interested in the event of the suit. They were members of the firm of Hurlbut Bros. & Co. at the time the note was executed, and were makers of the note in suit, and hence had a direct interest in the result of the pending action." In the course of the examination of the witness Tibbetts the following occurred: "Question. State whether or not, of your own knowledge, the account sued upon in this action has been paid. Answer. Well, in my judgment, it has been paid. I gave the plaintiffs a promissory note, and also a chattel mortgage, to satisfy that account. It was my individual note. Have never received the note in return. Plaintiffs received payment of that note. They did not receive any money. I do say the plaintiffs realized the goods in the house which I...