Rector v. Robins

• Decision Date: 22 April 1907
• Citation: 102 S.W. 209,82 Ark. 424
• Parties: RECTOR v. ROBINS
• Court: Arkansas Supreme Court

102 S.W. 209

82 Ark. 424

RECTOR v. ROBINS

Supreme Court of Arkansas

April 22, 1907

Appeal from Hempstead Circuit Court; Joel D. Conway, Judge affirmed.

STATEMENT BY THE COURT.

Appellant sues appellee on a promissory note fox $ 350 to the Howard County Bank, signed by Purdom, Roberson & Co., makers, and indorsed by appellant.

The note was dated April 9, 1900. Appellant alleged that he indorsed the note as surety for the makers; that he has been required to pay balance due on note after deducting certain payments; that appellee at the time the note was executed was a member of the firm of Purdom, Roberson & Co., the makers the other members being W. A. Roberson and James Purdom. Appellant prayed for judgment against the appellee.

Appellee answered, denying that at the time the note was executed he was a member of the firm of Purdom, Roberson & Co., and alleging that he was never a member of the firm, and denying that he was indebted to appellant in any sum whatever.

The evidence was directed to the question as to whether or not appellee was a member of the firm of Purdom, Roberson & Company at the time or before the appellant indorsed the note in suit.

There was evidence tending to show that he was a member of the firm before the note was executed, and that no notice of withdrawal had been given. There was evidence tending to prove that appellee had never been a member of the firm of Purdom, Roberson & Company, and that appellant had notice before he indorsed the note that appellee was not a member of the firm. Other facts stated in opinion.

Affirmed.

W. C Rodgers, for appellant.

1. When incompetent evidence is introduced, prejudice is presumed, and the burden is on the party introducing it to show that no prejudice resulted. 77 Ark. 431. The testimony of Old as to names appearing on letter heads was improperly admitted. It supports no issue, impeaches no one, and does not show either a contract of partnership or notice of dissolution. 74 Ark. 437. The bill of sale executed July 11, 1900, was improperly permitted to go to the jury as tending to prove the issues, and the failure to exclude the notes executed Sept. 9, 1899, was error. Id. Before a witness can be impeached, he must first be asked if he had ever made the statement sought to be contradicted. Id.; 62 Ark. 286; 24 Ark. 620. And the statements must be material. 58 Ark. 125; 23 Ala. 662; 33 Ala. 611; 63 Barb. 618; 53 Cal. 65. Any evidence of the witness Landrum as to who were the partners in the firm was no better than mere hearsay, or, at best, his opinion or conclusion. 52 Ark. 180; 55 Ark. 65; Id. 393; 70 Ark. 423; 71 Ark. 302; 75 Ark. 154.

2. It is in evidence that defendant admitted that he was a member of the firm. Declarations against interest are competent evidence against the party making them. 8 Ark. 510; 9 Ark. 389; 31 Ark. 252; 37 Ark. 580; 59 Ark. 503; 60 Ark. 26; 74 Ark. 104; 93 S.W. 41.

Sain & Sain, J. H. McCollum and W. S. M. Cain, for appellee.

1. The testimony of the printer, Old, was competent to impeach Roberson. Since Roberson's testimony was hostile, and to the effect that W. H. Robins was a member of the firm of Purdom, Roberson & Company, it was competent to introduce the mortgage of July 11, 1900, made by the firm to him; likewise to introduce the notes of Sept. 1899, signed by him as surety. On cross examination the trial judge's discretion as to the latitude to be allowed in examination of a witness will not be reviewed unless there is manifest abuse of the discretion. 61 Ark. 52; 16 Ark. 534. Where a witness has previously signed a paper which contradicts his testimony, it is competent to read the paper to the jury to impeach him. 68 Ark. 587.

2. The trial court is not permitted to instruct the jury as to the weight of the evidence, nor to lay particular stress upon particular portions of it. 31 Ark. 311; 37 Ark. 580; art. 7, § 23, Const.; 45 Ark. 172; Id. 492.

Participation in profits may be considered as a circumstance tending to prove a partnership, but is not decisive of that fact. 44 Ark. 423. On the question of holding one's self out as a partner, the true rule is that one who is not a partner but holds himself out as such is liable only to those creditors whom he has misled. Instructions are properly refused which merely repeat the same principles announced in instructions already given, though couched in different language. 58 Ark. 472; 34 Ark. 383; Id. 649.

3. If appellant was employed by the firm to examine one or more lots of timber, this did not necessarily make him a partner, though his compensation might have been fixed at one-third of the profits arising from the sale of the timber. 2 Ark. 346; 25 Ark. 327.

WOOD, J. HILL, C. J., not participating.

OPINION

WOOD, J., (after stating the facts. )

This is the second appeal in this case. The opinion on the first appeal is found in Rector v. Robins, 74 Ark. 437, 86 S.W. 667.

1. Appellant contends that the court erred in permitting evidence of the names in certain letter-heads. Witness Roberson testified that W. H. Robins (appellee) was a member of the firm of Purdom, Roberson & Company. Letter-heads were exhibited to this witness on his cross examination containing the names of W. A. Roberson, Jim Purdom and L. J. Robins, as members of the firm of the Red Land Lumber Company. Witness was asked if his firm used these letter-heads, and answered "Yes." He was then asked: "At the time these letter-heads were printed, didn't you give to W. J. Old the names of the members of the firm and tell him how to print them?" To this he answered: "No, sir; I didn't." Witness was also asked: "Didn't that firm, Purdom, Roberson and Company, issue some letter-heads under the firm name and style of the Red Land Lumber Company?" The answer was, "Yes, sir." The testimony of Old that he printed these letter-heads at the request of W. A. Roberson, who gave the names to go on the letter-heads, and that the list of names given him to print as members of the firm contained the name of L. J. Robins, instead of W. H. Robins, was admissible to contradict the witness Roberson. The foundation for the impeachment of the witness on the subject-matter of these inquiries was sufficiently laid by calling the attention of the witness to the "time the letter-heads were printed," and to the printer who did the printing. The letter-heads, in connection with the testimony showing the circumstances under which they were printed, were likewise competent testimony tending to contradict the witness W. A. Roberson and show that W. H. Robins was not a member of the firm of Purdom, Roberson & Company.

W. A. Roberson on cross examination testified, without objection from appellant, that the firm of Purdom, Roberson & Company bought a remnant of goods of one Hooker; that Robins advanced the money to pay for this; that the firm of Purdom, Roberson & Company executed to him a mortgage, dated July 11, 1900, to secure him for the advancement. Roberson testified that the mortgage was signed by all the members of the firm of Purdom, Roberson & Company. Appellee introduced over objection of appellant this purported mortgage. It was signed "Jas. S. Purdom, W. A. Roberson, L. J. Robins." W. A. Roberson having testified that the firm of Purdom, Roberson and Company signed this mortgage and that W. H. Robins was a member of the firm, the mortgage was competent as tending to contradict him as to who composed the firm of Purdom, Roberson & Company and as affecting the accuracy and credibility of his testimony. The mortgage as an independent evidentiary fact would not have tended to show that W. H. Robins was a member of the firm of Purdom, Roberson & Company, but, taken in connection with the testimony of Roberson that it was executed by the firm of Purdom, Roberson & Company, and that W. H. Robins was a member of that firm, it was competent evidence for the purpose named.

W. A. Roberson testified that late in the summer or fall of 1899 W. H. Robins became a member of the firm of Purdom, Roberson & Company; that after this he went to Texas, and leased the land from Conway for the mill, and executed notes for the same. He was asked this question: "Is this the note given by you all as members of the firm to Mr. Conway for that land?" His answer was: "Yes, sir; I suppose so." Two notes to E. M. Conway for $ 50 each, executed September 1, 1899, and signed by "James S. Purdom," W. A. Roberson," and "W. H. Robins, security," were admitted over appellant's objection. The notes were competent testimony, because they showed that W. H. Robins signed same as "surety", and this fact tended to contradict the testimony of Roberson that the notes were given by the signers as members of the firm. For, if W. H. Robins was a member of the firm, and had signed the notes as one of the members, he could not have been a surety for the other partners, which the notes themselves show he was.

Appellant introduced a witness, Gaines, who testified that about the last Sunday in August, 1899, W. H. Robins stated to him that "he, Mr. Purdom and Mr. Roberson were going into the mill business, and that they wanted his timber." He testified that he sold the timber the following spring to W. H. Robins, and in June entered into a contract with him. Appellee, on cross-examination, questioned the witness concerning this contract, and over objection of appellant introduced the contract in evidence, which was signed by G. B. Gaines, Redland Mill Company by L. J. Robins, and W. H. Robins, "security." The testimony and the contract were proper on cross-examination. This examination was responsive to the examination in chief, and the evidence elicited tended to contradict the witness Gaines.

Witness W. A. Roberson was asked on...