J. S. & L. Bowie & Co v. Goldsmith

• Decision Date: 31 August 1859
• Parties: J. S. & L. Bowie & Co., plaintiffs in error. vs. Maddox & Goldsmith, defendants in error.
• Court: Georgia Supreme Court

29 Ga. 285

J. S. & L. Bowie & Co., plaintiffs in error. vs. Maddox & Goldsmith, defendants in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1859.

Complaint, in Chattooga Superior Court. Tried before Judge Crook, March Term, 1859.

J. S. & L. Bowie & Co., of Charleston, South Carolina, brought suit against George B. T. Maddox, Josiah E. Maddox, and Andrew J. Goldsmith, partners in trade under the name and firm of Maddox & Goldsmith, on a promissory note for $735.99, dated 15th October, 1857, and payable six months after date, signed "Maddox & Goldsmith."

George B. T. Maddox pleaded the general issue; and further, that he was not a partner of said firm of Maddox & Goldsmith at the time said note was given, and did not sign the same, nor authorize any one to do so for him.

During the progress of the trial, the defendant, George B. T. Maddox, amongst other things, offered to prove by witness, Samuel Hawkins, what his conduct was, and how he looked and demeaned himself, when informed by the witness that it was understood in Charleston that he was one of the firm of Maddox & Goldsmith.

To this testimony plaintiff objected, upon the ground that the defendant could not thus manufacture evidence for himself. The court overruled the objection and admitted the testimony, and plaintiff excepted.

After the testimony on both sides was closed, the Court charged the jury, as requested by counsel for defendant, "that while the acts or declarations of defendant are compe-cent evidence to show that he was a partner in the firm, yet such circumstances will not, and can not outweigh positive proof that he was not a partner, unless it appears by the proof that he held himself out to the public as a partner to give the firm credit.\'\'

The court further charged, at the request of counsel for defendant, "that if they believed from the evidence that Dr. G. B. T. Maddox sold goods in Summerville, Georgia, in the early part of 1857, down to 20th September, 1857, on his own account, without any partner, and in September sold out to Maddox & Goldsmith, who carried on the business until February, 1858, when.Harlow bought out one partner, and afterwards the other; then defendant was not a member of the firm on 15th October, 1857, and the jury must find for the defendant, unless he did, or said something which came to the knowledge of plaintiffs, to induce them to believe that he was a member of the firm at the time the note bears date.

To which charges plaintiffs excepted.

The jury found for the pjaintiffs as against Josiah E. Maddox and Andrew J. Goldsmith, but for the defendant G. B. T. Maddox.

Whereupon counsel for plaintiffs moved for a new trial on the ground that the court erred in the rulings and charges above stated, and excepted to.

The court overruled the motion for a new trial, and plaintiffs excepted, and assigned as error said refusal.

Dabney, for plaintiffs in error.

Shropshire, contra.

By the Court.—Stephens, J., delivering the opinion.

We think the court erred in admititng the testimony that Dr. Maddox manifested surprise on being informed that in Charleston he was regarded as a member of thisfirm. This was used as evidence that he was not a member. What more verity is there in a gesture or exclamation of surprise, than in plain words expressing the same emotion? Yet, his words to that effect would be confessedly inadmissible. To admit either the one or the other would open a wide door for the introduction of manufactured evidence. There are a great many cases where the conduct of a person may be introduced as evidence for himself, but it i§ sufficient to remark that they are not cases, as in this instance, where gestures or exclamations, or even an "eloquent silence, " are used as voluntary vehicles of thought. It would be exceedingly difficult to distinguish this from the case of spoken language, it is acted language—the one being quite as voluntary as the other.

We think the court erred also in charging the jury that circumstances could not outweigh direct testimony. Direct or positive testimony might come from a very unreliable person, or coming from a source of great respectability might yet break down under the weight of its own absurdity. It is impossible, therefore, to fix any uniform value upon direct or positive testimony as such. It is equally impossible to fix a uniform value upon circumstantial evidence as such. In many cases the one justly outweighs the other, while in many others the preponderance is precisely reversed. But strictly speaking, the evidence on both sides of this case was only circumstantial. The testimony that Dr. Maddox sold out, for instance, is only a circumstance raising an improbability that he was again immediately connected with the firm. No witness could know that he was not a member of the firm, except the members of the firm themselves. All other people are necessarily left only to infer it, if they get to that conclusion at all.

We think the court was right in holding that persons who are mere apparent partners as distinguished from actual partners, are responsible as such, only to those who have acted on the faith that the appearance was according to the reality. The whole foundation of holding such personssaid Winifred, and said negroes were brought by Samuel to his mother\'s, where they remained until her death, about the year 1830.

The bill further charges, that said Samuel fraudulently took the bill of sale for said negroes to himself and in his name, and which he concealed from his mother during her life; that she was illiterate, unable to read or write, but always claimed the negroes, and had the possession and control of them as long as she lived, and her right and title was fully recognized and admitted by said Samuel.

The bill further states that after the death of said Winifred, one Asa Sessions, her son-in-law, became her administrator, but failed to claim or administer said negroes as part of her estate, but allowed said Samuel to take and hold the same as his own. And the bill charges that there was, in the opinion of complainant, a fradulent and corrupt understanding and collusion between said Asa and said Samuel in reference to said negroes. That said Asa closed up said administration in a very short time, and obtained letters of dismission therefrom, and soon thereafter became insolvent; and since his death his children have received considerable amounts of money or other things of value from said Samuel.

The bill further charges, that after the death of said Winifred, the said Samuel claimed and held said negroes under said fraudulent bill of sale, and that the defendants, Milly and Sarah Barfield, were cognizant of said fraudulent claim and concealment.

The bill further states that Samuel Barfield died in the year 1852 or 1853, and said negroes and their increase came into the possession of the defendants, William V. King, Milly Barfield and Sarah Barfield, who have held the same ever since; that said negroes and their increase now number about fifteen. That defendant, King, was appointed the executor of said Samuel, who left a will devising and bequeathing all his estate to said Milly and Sarah, his single sisters.

The bill further states that in 1853, complainant commenced his action of trover against the defendants, for the recovery of said negroes, to which action defendants pleaded the statute of limitaions, and complainant avers that he is unable at law to overcome said plea, and can sustain and establish his claim only in and by the aid of a Court of Equity, by reason of the fraudulent concealment aforesaid, and the minority of many of the parties, beneficially interested at the time of Winifred Barfield\'s death, etc.; and that neither complainant, nor those represented by him as administrator aforesaid, had any notice or knowledge of the title of said Winifred, in and to said negroes, or of the fraudulent practices, acts and concealment aforesaid, until a short time before the commencement of said action of trover.

The prayer of the bill is, that defendants be decreed to deliver up said slaves, and to account for their hire, that the same may be administered as the estate of said Winifred, and distributed according to law.

Defendants answered the bill, denying all its material allegations, and further relied upon the statute of limitations.

The bill was subsequently amended, alleging that in the year 1853, complainant and one Nathaniel H. King filed their bill against defendants, concerning said negroes, and prayed...