Woodford v. Dorwin

• Decision Date: 01 January 1830
• Citation: Woodford v. Dorwin, 3 Vt. 82 (Vt. 1830)
• Parties: TIMOTHY WOODFORD and WIFE, v. CANFIELD DORWIN
• Court: Vermont Supreme Court

3 Vt. 82

TIMOTHY WOODFORD and WIFE, v. CANFIELD DORWIN

Supreme Court of Vermont, Addison

January, 1830

[Syllabus Material] [Syllabus Material]

This was an action of assumpsit brought against Samuel Hurlburt Canfield Dorwin, and Thomas M. Dorwin, late partners under the firm of Hurlburt & Dorwins, on a promissory note made payable to Jerusha Woodford, bearing date December 1st, 1820, (about three months after her intermarriage with said Timothy) for $ 281,48, made payable one year from date, with interest, and signed by said Samuel Hurlburt by the name and firm of Hurlburt & Dorwins. Service of the writ was made only on Canfield Dorwin. Plea, non assumpsit, and actio non accrevit infra sex annos. On the trial in the county court, December term, 1829, WILLIAMS, J. presiding, the plaintiffs introduced evidence tending to prove, that the firm of Hurlburt & Dorwins existed one year, or more, and was dissolved on the 1st day of April, 1821. The plaintiffs also introduced, as evidence, two letters, written by said Hurlburt, one directed to John McNeil, the son-in-law of the said Jerusha, dated May 9, 1828, the other supposed to have been directed to one Charles McNeil, also a son-in-law of the said Jerusha, dated December 15, 1828, tending to prove a consideration for said note, value received not having been expressed therein; that money to the amount of the note, and for which it was given, belonged to said Jerusha before her marriage with said Timothy, and was loaned to said firm for her use; --also tending to prove, that after the dissolution of the firm of Hurlburt & Dorwins, and within six years next previous to the commencement of this action, and acknowledgement and promise was made, on the part of the said Samuel, one of the partners, that the note was due and that he would secure the payment of it. The defendant objected to the letters as evidence; --which objection was overruled by the court. The defendant introduced evidence tending to prove that the said Samuel, before and at the time of the marriage of the plaintiffs, was agent of said Jerusha, and had control of her monies:--That some time previous to May, 1828, the said Samuel was unfortunate in his business, and left Hinesburgh where he had previously resided, and went to reside in the state of New-York; that he left with his brother, William Hurlburt, a box, said to contain his papers, nailed up, on the outside of which was written, " Samuel Hurlburt's private papers, not to be opened; left with William Hurlburt:" --That in the latter part of May, 1828, said William, being absent from home, was met by John McNeil, who told him he wished to procure a note, which was in the box, belonging to the said Jerusha:--That he, William Hurlburt, wrote to his sister to shew McNeil the box of papers:--That when William Hurlburt returned home, he found McNeil, and one William Lyman, the son of the said Jerusha, at his house, who said they had examined the box, and found the note, which was then examined by the said William Hurlburt, and was the same, on which this action is brought; also a note of about fifty dollars given by McNeil to the said Jerusha; also a note given by Samuel Hurlburt to the said Jerusha for about one hundred and three dollars, on which were sundry endorsements; and also a memorandum of an account, in favor of Samuel Hurlburt against the said Jerusha, of various charges, and mostly for expenses incurred in the maintenance of the said Jerusha's children by the said Samuel, amounting to about one hundred and fifty dollars; --that the said notes and memorandum of an account were found with other papers of Samuel Hurlburt, all which were inclosed in an envelope, sealed up, on which was written, " Samuel Hurlburt's papers, not to be broken; " and that McNeil and Lyman then and there gave their receipt to William Hurlburt, and took them away. The evidence being closed, the court decided that, from the foregoing facts, the contract with the said firm was not completed for want of delivery of the said note; and that, as the note was not delivered to the plaintiffs by the said Hurlburt as her agent until after the dissolution of the partnership, but remained among his private papers until after he left this state, he could not then, by giving up the note to the plaintiffs, as aforesaid, make a contract binding upon the defendant without his consent. No other evidence being offered to prove a delivery of the note, the court charged the jury, that the defendant was entitled to a verdict; and thereupon a verdict was found for the defendant. The plaintiffs excepted to the opinion of the court, and a bill of exceptions being allowed, stating the foregoing facts, the cause was removed to this Court on a motion for a new trial.

Mr. Hawley, for the plaintiffs.--The admission of Hurlburt, one of the firm of Hurlburt & Dorwins, after the dissolution of the partnership, that, during the partnership, he, as the agent of Mrs. Woodford, loaned to the firm the sum in question, and took a note therefor, is binding on the other partners. Wood et al. assignees of Hussey et al. v. Braddick, 1 Taunt. 104.--Peake's N. P. C. 205.--1 Swift's Dig. 761.--Nicholls v. Dowding, 1 Starkie's R. 81. Also that the acknowledgement of Hurlburt, one of the firm, and within six years next previous to the commencement of the action, that the note was due, takes the case out of the statute of limitations. Smith v. Ludlow, 6 Johns. Rep. 267.--2 Stark. Ev. 897.--Perham v. Raynall et al. 9 Moore, 566.--Holme v. Green, 1 Stark. R. 489.--Halliday v. Ward, 3 Camp. 32.--Baillie et al. v. Ld. Inchiquin, 1 Esp. Cases, 435.--Clarke v. Bradshaw, 3 Esp. C. 155--7.--Whitcomb v. Whiting, Doug. 652.--4 Term. R. 516. The execution of the note during the partnership, and taken by Hurlburt, should be regarded as a delivery of the note to Hurlburt, as the agent of the plaintiffs, he standing as a third person, by reason of his agency, between the firm and the plaintiffs. Bolton v. Puller, 1 B. & P. 546--7.--Gill et al. v. Kuhn, 6 Sergt. & Rawle, 333. The agency of Hurlburt not being withdrawn, and the note being found, by Hurlburt's direction, in a box containing Hurlburt's private papers, although the plaintiffs might not have known of the existence of the note when it was made, yet, their subsequent assent to the transaction, by receiving the note, makes the note valid, and relates back to the original delivery thereof to their agent. Ruggles v. Lawson et al. 13 Johns. R. 285.--Belden v. Carter, 4 Day, 66.--Hatch v. Hatch, 9 Mass. 307.--12 do. 456.--Beekman v. Frost, 18 Johns. R. 544.

Mr. Phelps, for the defendant.--1. The letters or admissions of S. Hurlburt were not competent evidence to charge the defendant. It is to be observed that the note in question was actually executed by Hurlburt for money which he had before had in his hands, and for which he was responsible to the plaintiffs, and the object of his admissions was, by proving a consideration for the note, to charge the partnership with the debt, and this long after the partnership had been dissolved. Although when a partnership is proved, the admission of one partner is, as a general rule, evidence against all, yet a person prima facie liable himself is not competent to prove a partnership which shifts the liability: nor, a partnership being proved, is he competent to prove that a debt, prima facie his separate debt, is the debt of the partnership. The letters refer to his accountability for the money of the plaintiffs, and the statement as to the loan of it to the defendant, is made in discharge of himself. Mont. on Part. 94, 97.--Walden v. Sherburne, 15 John. 409.--Gibbons v. Wilcox, 2 Stark. R. 43.--Brown v. Brown, 4 Taunt. 752.--Purviance v. Dryden, 3 Serg. & R. 402.--Whitney et al. v. Sterling et al. 14 John. 215.--2 Stark. Ev. 44.--The case of Wood v. Braddick, 1 Taunt. 104, is not analogous, as there was in that case no previous separate liability of Cox to be transferred to the partnership. The distinction is between those cases where the partnership is liable, if any one, and cases where the question is whether the witness in his separate capacity, or the parties are liable?

2. The note never was delivered to the plaintiffs. It was placed among Hurlburt's private papers under circumstances which show that it was not to be delivered--was taken away in the manner stated, and without...