Rainsford v. Massengale
| Citation | 5 Wyo. 1,35 P. 774 |
| Parties | RAINSFORD v. MASSENGALE ET AL |
| Decision Date | 15 February 1894 |
| Court | United States State Supreme Court of Wyoming |
Re-hearing Denied July 25, 1894, Reported at: 5 Wyo. 1 at 10.
Commenced in District Court April 14, 1890.
ERROR to District Court for Laramie County, HON. RICHARD H. SCOTT Judge.
Action by John Massengale and James Ross, co-partners as Massengale & Ross, against Thomas B. Adams, Edward C. Choate, Minerva M Peters and George D. Rainsford, as co-partners under the firm name of Adams, Choate & Co., upon a promissory note given for the balance of the purchase price for certain horses. The note was as follows:
The petition alleged it to have been made, executed and delivered to the plaintiffs by the defendants, alleging that said defendants were co-partners together under the firm name and style of "Adams, Choate & Co." George D. Rainsford, who was alleged to be one of the co-partners, answered the petition, denying that he was a member, or that he ever had been a member, of the firm of "Adams, Choate & Co." Plaintiffs then filed a reply, alleging that Rainsford was estopped from denying that he was a member of said co-partnership, for the reason that he had represented to the plaintiffs that he was.
The evidence on part of the defendant showed that the note was given for the balance due on the purchase price of certain horses which Massengale & Ross, at the time, sold to "Adams, Choate & Co.," and which were being purchased at that time by George D. Rainsford. The co-partners of the firm of "Adams, Choate & Co." were shown to be Thomas B. Adams, Edward C. Choate and Minerva M. Peters. It was not shown that Rainsford was a member of the firm. The evidence on behalf of Rainsford was to the effect that he never was a member of the firm, and that he had no connection whatever with it except that he was requested by the firm to purchase a car load of horses for them.
Plaintiff's witnesses testified that when the horses were being selected Rainsford said that he was buying them for "Rainsford, Adams, Choate & Co." Judgment was rendered for plaintiffs for the balance due on the note, $ 930.74, against all the defendants including Rainsford.
Judgment affirmed.
Potter & Burke, and W. R. Stoll, for plaintiff in error.
The proof did not establish any representation such as alleged, viz.: that Rainsford was a member of the particular firm whose name was signed to the note. The representation that he was buying the horses for a certain firm could not amount to a representation that he was a member of that firm. That was the extent of the proof of representation. There was a fatal variance. 1 Chitty on Pleadings, 307; 2 Rice on Evidence, Chap. XVI; 2 Thompson on Trials, Secs. 2251-2261; Connolly v. Cottle, 1 Ill. (Breese), 365; Ball v. Strohecker, 2 Spears (S. C.), 305; Ulrich et al. v. Ragan, 11 Ala. 529; Boren et al. v. State Bank, 8 Ark. 500; Hall v. Bennett, 2 Greene (Iowa), 466; Cotes v. Campbell, 3 Cal. 192; Fant v. Gadberry, 5 Rich (S. C.), 10; Morrison v. Bradley, 5 Cal. 503; Spangler v. Hugh, 21 Ill. 84; Rives v. Marrs, 25 Ill. 277; Jones v. Louderman, 39 Mo. 288; Gossom v. Badgett, 6 Bush. (Ky.), 97; Dean v. Yates, 22 O. S., 397; Christian College v. Hendley, 49 Cal. 347; Proctor v. Rief, 52 Ia. 592; Wharton v. King, 69 Ala. 365; Washington v. Timberlake, 74 Ala. 259; Stewart v. Gordon, 65 Tex. 344; McGregor v. Fuller Imp. Co., 72 Ia. 143; Dennis v. Spencer, 45 Minn. 250; 47 N.W. 795; Stokes v. Brown, 20 Or. 530.
It was error to exclude evidence of the firm's reimbursement to Rainsford of the advance payment. Any circumstance connected with the transaction is admissible which tends to confirm or dispute any proposition involved in the main transaction. Where there is a conflict of testimony either party may prove any fact bearing on the probabilities of the case. (Chester v. Dickinson, 54 N.Y. 11; Thorn v. Helmer, 4 Abb., C. A. D., 408-411; 2 Keys, 27-30; Armstrong v. People, 70 N.Y. 43; Bronner v. Frauenthal, 37 N.Y. 166; Moors v. Meacham, 10 N.Y. 207; Harris v. Wade, 61 N.Y. 630; Waddle v. Elmerdorf, 10 N.Y. 170; Bean v. Tounele, 94 N.Y. 381; People v. Sherman, 103 N.Y. 513; Upton v. Winchester, 106 Mass. 330; Knallakans v. Beck, 47 Hun., 117; Cornell v. Markham, 19 Hun., 275; Parker v. Coburn, 92 Mass. 82; Smidt v. Schauzlin, 21 J. & Spencer, 498; Stone v. Hubbardston, 100 Mass. 49; Holyoke P. Co. v. Conklin, 2 Allen, 326; Pontius v. People, 82 N.Y. 340; Dyer v. Brown, 52 Hun., 321; Nichols v. Van Valkenburgh, 15 id., 230; Bank v. Hyland, 53 id., 108.
Lacey & Van Devanter, for defendants in error.
Rainsford was estopped to deny that he was a member of the firm. 2 Pomeroy's Equity Jurisprudence, Sec. 805, and note; Marvel v. Ortlip, 3 Del. Ch., 9; Merchants' Bank v. State Bank, 10 Wall., 604-645; Morgan v. Railroad Company, 96 U.S. 716-720; Hartje v. Vulcanized Fiber Co., 44 F. 648; Schapback v. Long, 8 Southern (Ala.), 113; Baird v. Vaugh, 15 S.W. (Tenn.), 734; Combs v. Sullivan Co., 16 S.W. (Mo.), 916.
If there was conflict in the testimony the appellate court will not review it. (1 Wyo. 17; id., 336; id., 352; id., 396; 2 Wyo. 113; id., 271; id., 493; 3 Wyo. 57; id., 164.) If there was any variance it was not a material one. (Rev. Stat., Secs. 2642, 2643, 2644; Newhall, Etc., Co. v. Ry. Co., 47 Wis. 516; Marschentz v. Wright, 50 id., 175; Flanders v. Cottrell, 36 id., 564; Catlin v. Hunter, 11 N.Y. 368; Stokes v. Brown, 20 Or. 530; Place v. Minster 65 N.Y. 89; Steinke v. Bentley (Ind.), 34 N.E. 97; Benninger v. Hess, 41 O. St., 64; Jenkins v. Barrows, 73 Ia. 438; Kurtz v. Forquer, 94 Cal. 91; Belknap v. Sealy, 14 N.Y. 143; Johnston v. Clark, 30 Minn. 308; Russell v. Loomis, 43 Wis. 545; Fox, Etc., Ry. Co. v. Shoyer, 7 id., 365; Graves v. State, 121 Ind. 357; Ashton v. Shepard, 120 id., 69; Farley v. Eller, 29 id., 322; Zabriski v. Smith, 13 N.Y. 322; Tyng v. Commercial, Etc., Co., 58 id., 308; U. S. v. Purdy, 38 F. 902; Zeininger v. Schnitzler, 48 Kan. 63-66). As the evidence was admitted without objection, and variance was first claimed on motion for new trial, no advantage can now be taken of it. (Williams v. Ins. Co., 57 N.Y. 274; Fallon v. Lawler, 102 id., 228; Bell v. Knowles, 45 Cal. 193; Carpenter v. Ewing, 76 id., 487; Roberts v. Graham, 6 Wall., 578; Johnson v. Avery, 41 Minn. 485; Yik Hon v. Spring Valley, Etc., 65 Cal. 619; Mosher v. Lawrence, 4 Denio, 421; Lawrence v. Barker, 5 Wend., 305; Weed v. Saratoga, Etc., Co., 19 id., 534; Knapp v. Simon, 96 N.Y. 284; Ins. Co. v. Gunter, 116 U.S. 113.) The only test of materiality is the proof that the adverse party has been misled. (Turner v. Ry. Co., 51 Mo. 501; Fisher v. Max, 49 id., 404; Clements v. Mahoney, 55 id., 553; Wells v. Sharp, 57 id., 158; Eli v. Potter, 58 id., 158.)
This is an action to recover a sum due on a certain promissory note executed and delivered by Adams, Choate & Co., "per Geo. D. Rainsford." Thomas B. Adams, Edward C. Choate, Minerva M. Peters and George D. Rainsford were sued as copartners doing business together under the firm name and style of Adams, Choate & Company. George D. Rainsford alone of the defendants answered, although it appears all were served with the process of the court. The other defendants were in default. Rainsford in his separate answer denies his liability and alleges that he was never a member of said co-partnership. To this answer the plaintiffs in the original action, defendants in error here, replied alleging that Rainsford executed and delivered the note as a member of the co-partnership of Adams, Choate & Company, and at the time of the execution and delivery represented that he was a member of said firm, and that he had full power to execute said note on the part of said firm, and that the plaintiffs, Massengale and Ross, relied upon said representations, believed them to be true, and accepted the note as that of said Adams, Choate, Peters and Rainsford, by their firm name and style of Adams, Choate & Company. The reply pleads specially the estoppel caused by the representations and actions of Rainsford, and asserts that he ought not to be heard to deny that he is a member of the co-partnership. Upon these issues a trial was had in the district court for Laramie county, by the court, sitting as a jury, a jury trial having been waived, and upon the issues presented by the pleadings and the evidence adduced, the court found for the plaintiffs against all of the defendants, including Rainsford, and rendered judgment accordingly. Rainsford alone prosecutes error, as the other defendants were in default in the trial court and do not appear here.
The grounds of error will be treated of separately.
1. It is claimed as error that there is a fatal variance between the allegations of the petition and reply of plaintiffs and the proofs and testimony adduced on the trial of the case in behalf of the plaintiffs which amounted to a total failure of proof. We do not see that there is any inconsistency or variance between the petition and the reply of the plaintiffs. They assumed in their petition that Rainsford was a member of the co-partnership and charged therein that he was. He denies this allegation in his separate answer, and in reply thereto, the plaintiffs allege that he represented himself to be a member of the co-partnership of Adams, Choate & Co., that they relied upon such representations, believed them to be true, and...
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