Gardner v. the Nw. Mfg. Co..

• Decision Date: 30 September 1869
• Citation: 1869 WL 5449,52 Ill. 367
• Parties: JOHN D. GARDNERv.THE NORTHWESTERN MANUFACTURING COMPANY.
• Court: Illinois Supreme Court

52 Ill. 367

1869 WL 5449 (Ill.)

JOHN D. GARDNER

v.THE NORTHWESTERN MANUFACTURING COMPANY.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

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

The opinion states the case.

Messrs. HOYNE, HORTON & HOYNE, for the appellant.

Messrs. WAITE & CLARK, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action brought by the appellee against John D. Gardner and William D. Nichols, as partners, to recover the value of certain articles sold and delivered on the order of Nichols. Nichols made default, and Gardner pleaded the general issue, and a special plea denying the partnership. The issues thus formed were tried together, according to the rule laid down in Stillson v. Hill, 18 Ill. 262, and found for the plaintiff.

The business, in which Gardner had an interest of some kind, was transacted in the name of W. D. Nichols, and on the trial Nichols was sworn as a witness on behalf of plaintiff, and asked, on the examination in chief, “What he said to appellee as to who constituted ‘W. D. Nichols,’ when the goods were purchased?” Crane, the vice-president of the manufacturing company, was also sworn, and was asked, “What representations, if any, did Nichols make to you before he got the credit?” These questions were asked for the purpose of establishing the joint liability of Gardner, and were objected to by his counsel, but the objection was overruled. The answer was, that Nichols represented to the appellee, when he made the purchase, that Gardner was a silent partner, and Crane swears that appellee would not have sold the goods to Nichols alone, on credit. This evidence would undoubtedly have a strong influence with the jury, which would not be counteracted by any of the instructions afterwards given. These questions should not have been allowed. What Nichols said to appellee, as to the silent partnership of Gardner, is not evidence against Gardner to prove that fact. The declaration of a purchaser of goods to the vendor, that some other person not present is jointly interested as a partner in the purchase, is no evidence whatever against such person to establish the partnership. It is, however, urged by counsel for appellee, that they had already proved the partnership, or made prima facie proof of it, by the evidence of Nichols, and if the court was satisfied by the proof made, it was its duty to admit this evidence, on the...