Treadwell v. Wells

California Supreme Court Jul 15, 1854Published

Before: Murray, Wells

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Holding. The court affirmed the judgment for the defendants, holding that the trial court properly admitted evidence of dissolution notices, correctly instructed the jury on the inference of actual notice, and properly allowed a witness to refresh their memory using business books.

Issues

Whether the trial court erred in admitting newspapers containing dissolution notices into evidence.
Whether the trial court erred in instructing the jury that publication in a paper taken by the plaintiffs allows an inference of actual notice.
Whether the trial court erred in refusing to instruct the jury on whether the plaintiffs were previous dealers.
Whether the trial court erred in instructing the jury on the criteria for treating plaintiffs as new dealers based on the lapse of time.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Upon this proof, we see no error in admitting other papers in evidence, by way of establishing the publicity of the notice, and raising the presumption of actual knowledge on the part of the plaintiffs”

“The Court properly refused this instruction, having no right to charge the jury with respect to matters of fact.”

“The witness was the defendants’ book-keeper, and was properly allowed, by the soundest rules of evidence, to refer to the defendants’ books to refresh his memory, with regard to the plaintiffs’ account.”

Synopsis

Appeal from tbe Fourth Judicial District.

This was an action brought by plaintiffs against the defendants, as bankers, to recover the sum of $2,037 70, a balance due them, on the 2d day of October, 1851, for divers sums of money, deposited wi.th the defendants. The defendant Wells, denied generally any indebtedness to the plaintiffs. The defendants, Willis, Skinner and Weed, denied generally their liability to the plaintiffs, and specially, the fact of their co-partnership with the defendant Wells, under the firm of Wells & Go. during the time of the deposits.

On the trial it appeared, that previous to February 1st, 1850, the plaintiffs had deposited with Thomas G. Wells alone; that at that date he entered into partnership with the other defendants; that after this partnership the plaintiffs continued their * deposits with the [261] defendants, under the firm name of Wells & Co., until some time between August, 1850, and January, 1851, when, in consequence of a quarrel with one of the defendants, no further deposits were made by plaintiffs at the bank until July, 1851, when deposits were renewed, and continued during July and August, 1851; that previous thereto, the partnership between defendants was dissolved March 20th, 1851, to take effect April 1st, 1851; that notices of this dissolution were published immediately thereafter, in the Alta California and the Pacific News; that the Alta California newspaper was taken by the plaintiffs and delivered to them at their place of business during the month of 1851; that after the dissolution of the firm, Wells continued to do business, as before, under the name of Wells & Co., and failed in October, 1851.

The question made at the trial was mainly, whether the plaintiffs had such notice of the dissolution of the old firm of Wells & Co., as released Willis, Skinner and Weed. The points of exception to the admissibility of evidence, and the instructions of the Court to the jury, sufficiently appear in the opinion of the Court.

The jury rendered their verdict as follows:.

“They find for the plaintiffs against the defendant, Thomas G. Wells only, for the sum claimed, with interest.”

Whereupon it was ordered, with the consent of the counsel of said Wells, that judgment be entered against him in favor of the said plaintiffs, and also, that judgment be entered in favor of the other defendants, Willis, Skinner and Weed, against the said plaintiffs, for costs.

From this judgment, and the order of the Court denying a new trial, the plaintiffs appealed.

1. Whether the plaintiffs were entitled to actual notice or not, as previous dealers, on the proof, was a question of law alone. (Day’s Rep. 353; 17 Wend. 524; 22 lb. 183.) An intermission of six months in the account, could not warrant the instruction to the jury, that they might dispense with notice. There is no authority for such doctrine. [262] (Gorham v. * Thompson, Peake 42, cited in Watson on Part. 384.] Lord Kenyon held notice necessary, although the partnership had been dissolved seven years before the debt sued on was contracted, and the dissolution was proved to be generally known.

Mr. Ch. J. Murray delivered the opinion of the Court.

Mr. Justice Wells concurred. This action was brought against the retiring partners of an old firm, to recover for an amount due from the new firm, on the grounds that the plaintiffs were previous dealers, and had not been notified of the dissolution and continuation of the business by a new partnership.

[263]The cause was tried by a jury, and a verdict rendered for the defendants, from which the plaintiffs appealed.

The errors assigned are:

1st. The admission of certain newspapers in evidence *containing certain notices of the dissolution, [263] which papers were not taken by the plaintiffs.

It appears by the record, that one of the papers so admit-, ted, and containing such notice, was taken by the plaintiffs, and left at their place of business for several weeks. Upon this proof, we see no error in admitting other papers in evidence, by way of establishing the publicity of the notice, and raising the presumption of actual knowledge on the part of the plaintiffs, ¡

2d. That the Court erred in charging the jury that “the publication of the notice of dissolution in a paper taken by the plaintiffs, was a fact from which they might infer actual notice. ”

So far from this being error, it has never been doubted within our knowledge, and in the precise language of this Court in the decision of Fgery & Hinckley v. Wells.

3d. “The refusal of the Court to instruct the jury that the proof showed that the plaintiffs were previous dealers.”

The Court properly refused this instruction, having no right to charge the jury with respect to matters of fact.

4th. “That the Court erred in instructing the jury that if sufficient time had elapsed between the dealings of the plaintiffs with the old firm, and their subsequent transactions with the new firm, to put a reasonable man upon inquiry, that the plaintiffs might be treated as new dealers.”

We see no error in this instruction, and we believe the rule to be founded on right reason and sound policy.

5th. “That the Court erred in allowing a witness to refer to, and testify from, the defendants’ books.”

Treadwell v. Wells

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