Dawson v. Pogue

• Citation: 18 Or. 94,22 P. 637
• Parties: DAWSON v. POGUE et al.
• Decision Date: 20 December 1888
• Court: Oregon Supreme Court

22 P. 637

18 Or. 94

DAWSON v. POGUE et al.

Supreme Court of Oregon

December 20, 1888

Appeal from circuit court, Jackson county; L.R. WEBSTER, Judge.

(Syllabus by the Court.)

The acts and declarations of parties to an action are not competent evidence in their behalf, unless they constitute a part of a transaction which bars or disproves the claim made against them, or are a part of a material fact in the case.

In an action against a party, to charge him with a debt as a copartner, it is competent for him to prove that at the time the debt was contracted the partnership had been dissolved but, in order to render the proof admissible, it must tend to show an actual dissolution of the partnership relation.

Where in an action against one N. and P. for goods sold to the latter, the complaint alleging that they were copartners at the time, N. denied in his answer, and in his testimony upon the stand, that he and P. were ever partners at any time, and offered to evidence a writing, purporting to have been signed by himself and P. at a time prior to the sale of the goods to the effect that all partnership that may have existed between them, either express or implied, was that day at an end, which he testified was signed by himself and P. at the time it bore date, but which P. denied ever having signed, or having been asked to sign, or that any conversation had ever been had upon the subject; and no evidence was offered showing that the writing was executed as corroborative of or as a part of any transaction between the parties, or in accordance with any mutual understanding between them, - held, that the writing was not admissible as evidence "tending to show that no partnership in fact existed between N. and P. at the time the merchandise was sold, or that any partnership that might have existed between them had been dissolved."

Held, further, that the facts and circumstances of the case, together with N.'s testimony, to the effect that, having heard that P. had represented to several parties that he was interested with him, as a partner, to protect himself, he prepared the writing, and had it signed, negatived any inference that it was intended as part of a transaction to dissolve a copartnership between them, or corroborative of any such transaction.

ON REHEARING.

Where, on an issue whether a partnership did or not exist, the record disclosed that one of the defendants, "having heard his co-defendant had reported that he was a partner with him, and to protect himself, prepared a writing," to the effect that all partnership which may have existed between them, express or implied, was at an end, which was signed by them, and offered such writing as evidence tending to show a partnership dissolution, held, (1) that the writing was not prepared and executed on the assumption of the existence of any partnership, but as a contradictory statement by the author of such reports; and that it could only be used as evidence to effect the credibility of such co-defendant. Held, (2) that as the writing was prepared to protect the defendant from the declarations of his co-defendant, but that as such declarations could not bind him, or create the relation of partners, the writing could not operate as a dissolution agreement. Held (3) that, within the purview of the facts for which the writing was prepared, it was not done to dissolve a partnership which was supposed to exist; but, to give it that effect, it would place the defendant in the position of preparing his own and co-defendant's written declarations to serve that purpose, which was inadmissible.

When a bill of exceptions states that the court "instructed the jury upon all the issues involved in the case, and upon matters properly for their consideration," but such instructions were oral, and not part of the same are incorporated therein, and certain instructions asked and refused are set out and excepted to, whether, upon such a record, the court will presume that the instructions asked and refused, if good law, and applicable to the facts, were covered by the instructions given, not decided; but suggested that the rule as to such presumptions ought to be confined in its operations to the case in which written instructions have been required and given by the trial court, and that then, if a party complains that instructions asked have been erroneously refused, and fails to bring the written instructions given, it is right that such presumption should be indulged.

PER STRAHAN, J., DISSENTING.

A partnership is formed by contract entered into between two or more competent persons.

Inasmuch as a partnership is formed by the mutual consent of the parties, it may be dissolved in the same way. Hence, a paper signed by the members of a firm, declaring, in effect, that any partnership that might theretofore have existed between them was at an end, is competent evidence in favor of a retiring partner, as tending to prove that the remaining partner had no power to bind him by contracts for goods, made after the date of such writing.

A paper, signed by the members of a firm, declaring a dissolution, is competent and material evidence on the issue as to the non-existence of the partnership after that time. If made at the time, it is evidence, of the highest character, tending to prove the fact of dissolution.

A person sues as a member of a firm, at a particular time, may deny that he was a member thereof at the time alleged, and prove upon the trial a dissolution of said firm prior to the time charged in the complaint, without alleging affirmatively in his answer the fact of such dissolution. The dissolution is not new matter, constituting a defense, but a fact which may be shown under the denial of plaintiff's allegations.

Upon the dissolution of a partnership having a dormant partner, such dormant partner need give no notice of his retiring, except to persons who knew of his previous connections with the firm. As to all others, he owes no such duty, and cannot be made liable for debts contracted by the remaining member of the firm after he had retired.

H.K. Hanna, E.B. Williams, J.R. Neil and P.P. Prim, for appellant.

Cox, Smith & Teal and H. Kelly, for respondents.

THAYER C.J.

This case, in the circuit court, was an action brought by the said Dawson against said Pogue and Nickell, to recover for merchandise alleged to have been sold to them, as copartners, under the firm name of M.E. Pogue, by certain merchants doing business at the city of Portland, and the accounts therefor assigned to said Dawson. It was alleged in the complaint that at all times therein mentioned the defendants were partners, under said firm name; that the said merchandise was sold to them, by the several merchants referred to, as such partners; and that the claims therefor were assigned to said Dawson. Pogue made default, but Nickell filed an answer, in which he denied "that he was a partner of the said M.E. Pogue during any of the times stated in the said complaint, or at any other time, under the firm name of M.E. Pogue, or otherwise." Said Nickell also denied the alleged indebtedness to the several merchants, and denied that the plaintiff, Dawson, was the owner or holder of the said claims, or any portion thereof. The main issue in the case was in regard to the alleged copartnership between Pogue and Nickell. A trial by jury was had, and a verdict returned in favor of the plaintiff; upon which the judgment appealed from was entered.

The appellant's counsel claims that Dawson was not the owner of the accounts sued on, nor entitled to maintain an action therefor; also, that the circuit court committed error in refusing to allow a certain paper, purporting to have been signed by Pogue and Nickell on the 28th of February, 1884, to be introduced generally, as evidence in the action; and in giving and in refusing certain charges to the jury. The only proof of the assignment of the claims to Dawson seems to have been a stipulation upon the part of Nickell to the effect that they were assigned to him by the respective parties owning them, by written instruments executed in due form, at the times and places alleged in the complaint, but without any valuable consideration, and for the sole purpose of enabling Dawson to enforce collection of them by action in his own name. The stipulation was given as a condition for changing the venue of the action from the county of Multnomah to the county of Jackson, and intended to save the necessity of producing the witnesses to the assignment at the trial. I cannot perceive that it makes any difference whether there was any consideration for the assignment of the claims, or for what purpose they were assigned, if the title to them passed to Dawson. The execution of a written assignment of the claims to Dawson, presumably, vested the legal title to them in him, and made him the real party in interest. The transaction, however, may have been only a sham; but that must be established by the defendants before they can claim that he was not the real party in interest. The stipulation itself does not prove it.

The ruling in regard to the admissibility of said paper seems to have been made under the following circumstances: The plaintiff submitted testimony tending to show the copartnership between the defendants, as alleged in the complaint. Thereupon Nickell offered himself as witness in his own behalf, and, after testifying to his having loaned to Pogue $1,500 and taken his note therefor, and a mortgage to secure the same, stated that he and Pogue were never partners at any time; that he heard Pogue was behind; he went to him to get the mortgage and secure the note; that after he had obtained the note, and having heard that Pogue had reported to several part...