Schlater v. Winpenny

• Decision Date: 02 March 1874
• Parties: Schlater <I>et al. versus</I> Winpenny.
• Court: Pennsylvania Supreme Court

75 Pa. 321

Schlater et al. versus Winpenny.

Supreme Court of Pennsylvania.

February 18, 1874.

March 2, 1874.

February 18th 1874.

Before AGNEW, C. J., WILLIAMS, MERCUR and GORDON, JJ. SHARSWOOD, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 34, to July Term 1872.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

E. R. Worrell, for plaintiffs in error.—The statements of a witness on a trial may be contradicted by evidence of inconsistent statements out of court: Batdorff v. Bank of Reading, 11 P. F. Smith 179; Cameron v. Montgomery, 13 S. & R. 132; Ott v. Houghton, 6 Casey 451.

R. P. White, for defendant in error.

The opinion of the court was delivered, March 2d 1874, by WILLIAMS, J.

There are three questions in this case: —

1st. Whether the partnership of F. Schlater & Co. expired on the 1st of January or the 13th of February 1869?

2d. If on the former day, whether the plaintiff below had notice of its dissolution?

3d. Whether John Clendenning was authorized to wind up the affairs and settle the business of the partnership after its dissolution?

I. The evidence shows that the plaintiff sold yarns after the 1st of January 1869, to John Clendenning, who was authorized by power of attorney bearing date the 17th of January 1868, "to buy and sell goods and merchandise," for and in the name of the firm, and that the price of these yarns was included in the notes sued on. The plaintiff himself testified that "these notes were given for a balance of account and are renewals of others." If then the partnership expired on the 1st of January 1869, and the plaintiff had notice of its dissolution, it is clear that he is not entitled to recover that portion of the notes embracing the price of the yarns sold after that date, even if John Clendenning, by whom they were given, was authorized to settle the business of the partnership. It is, therefore, a material question, whether the partnership expired on the 1st of January 1869, or was dissolved on the 13th of February thereafter.

Clendenning was examined as a witness for the plaintiff, and testified that the partnership continued until the 13th of February 1869, and that it was then dissolved. On his cross-examination he said that he did not tell Benj. Rowland, Jr., that this firm expired January 1st 1869; and that he did not tell him that all coal charged to F. Schlater & Co., after that date, must be recharged to himself, as the firm expired January 1st 1869; and that the coal was not so recharged, and he did not pay the bill for the same. The defendant called Rowland, who testified: "We furnished coal to F. Schlater & Co. In January and February 1869, we charged coal to F. Schlater & Co. and sent the bill to Schlater & Co." The defendant then offered to show that Clendenning gave notice to the witness that this partnership ended January 1st 1869, and that as to the coal charged to F. Schlater & Co., after January 1st 1869, Clendenning said that it was to be recharged to John Clendenning; and that it was so recharged and paid by Clendenning, and that this notice was given before the date of these notes. The plaintiff objected to the offer and the court sustained the objection. The defendant then offered to prove by the witness the declarations of Clendenning that the firm of F. Schlater & Co. was dissolved January 1st 1869. This offer was objected to unless the plaintiff was present and had notice of the dissolution, and the court...