Seekell v. Fletcher
| Decision Date | 08 April 1880 |
| Citation | 5 N.W. 200,53 Iowa 330 |
| Parties | SEEKELL v. FLETCHER AND ANOTHER. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Harrison district court.
This action was originally brought against J. B. Fletcher and the defendant Van Dusen, to recover the sum due upon a promissory note. Fletcher made no appearance, and died pending the action. The defendant Clara Fletcher, who is administratrix of his estate, was substituted as a defendant. The plaintiff amended his petition, in which amendment he averred, in substance, that said Fletcher and Van Dusen were partners in the business of farming, dealing in live stock, buying and selling corn, etc., and that in March, 1875, they purchased of the plaintiff, on their joint account as partners, 700 bushels of corn, which was delivered to them jointly, and that they executed and delivered to plaintiff, in the course of their said joint business, their certain promissory note, in the name and style of J. B. Fletcher, for the purchase price of said corn; that said note was given to change the form of said indebtedness, and not as payment. The defendant Van Dusen denied the alleged partnership, and averred that said Fletcher purchased said corn upon his individual account, and executed his own promissory note therefor. Upon this issue the cause was tried to a jury. There was a verdict and judgment for the plaintiff. The defendant Van Dusen appeals.J. C. Naylor and A. W. Clyde, for appellant.
W. S. Shoemaker and Smith & Kelly, for appellee.
1. The plaintiff was examined as a witness, and testified in most positive terms that the corn was purchased by both Fletcher and Van Dusen; that they joined in the contract of purchase. He also testified to a number of transactions previously had with the parties, tending to show that they were partners. After detailing these facts and circumstances he was asked this question: “Now, I will get you to state again, from the manner of their dealings with you, prior to the execution of this note, whether or not it was understood by you at the time that they were partners or not?” Answer. “As partners, I sold corn to Van Dusen and Fletcher, for which this note was given.” Objection was made to this evidence as incompetent and immaterial, which objection was overruled. An instruction was asked to be given to the jury, to the effect that a partnership could not be proved by the opinions of witnesses, which instruction was refused.
It does not appear that this testimony was in the nature of an opinion. It is rather the expression of a belief upon the part of the plaintiff that there was a partnership at and before the date of the note. If the defendant Van Dusen's acts and representations were such as to induce the plaintiff, as a reasonably prudent man, to believe his statements that he was a partner with Fletcher, we know of no reason why the plaintiff should not be allowed to state to the jury that it was in that belief he acted when he made the sale and took the note; and it was then for the jury to say whether the facts justified his belief. The word “understood” may not have been, and probably was not, the best word that could have been used to express the idea sought; but the error, if any, is too inconsiderable to warrant a reversal upon that ground. The same may be said of the objection to the testimony of the witness Popejoy, where he states that Van Dusen “said they were in partnership in all Van Dusen's business transactions, as I understood him.” The witness had detailed a conversation had with Van Dusen, and evidently was not giving an opinion, but merely the import of language as he understood it.
Other objections were made to the admission and the exclusion of evidence which do not seem to us to be well taken. We need not further consider them. A mere statement of them would show that they are without merit.
2. The court gave to the jury seven instructions. Each and all of them were excepted to by the defendant, and error is assigned upon them, and the alleged errors are argued at length by counsel. The defendant presented 10 instructions, and requested that they be given to the jury. They were refused, and error is assigned and argument is made thereon.
We do not deem it necessary to go through with these assignments seriatim. There are certain controlling considerations arising in the record which lead us to an affirmance of the judgment, which we will briefly consider.
There was but a single question for the jury to determine, and that was whether the defendant Van Dusen was, under the evidence, liable as a party in the purchase of the corn and the execution of the note. The second and third instructions given by the court to the jury, and which embody rules for their guidance in determining the defendant's liability, are as follows:
“2. If, from the evidence which is before you, you are satisfied that on or about the thirtieth day of March, 1875, the defendant Albert Van Dusen and J. B. Fletcher were in fact together engaged in business, in the purchase of grain, and they, or either of them, for Van Dusen & Fletcher, in the grain business, went, on or about that date, to the plaintiff, Seekell, and purchased corn, and gave the note in suit therefor,...
To continue reading
Request your trial