Cravens v. Dewey (1859) · DecisionDepot

Cravens v. Dewey

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1859Published

Before: Baldwin, Tho

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Holding. The court held that a partner cannot assign an unliquidated claim to another partner to qualify as a witness, and that a nonsuit was improper because the plaintiff's evidence of indebtedness created a triable issue of fact.

Issues

Whether a partner who assigns his interest in an unliquidated firm claim to another partner is a competent witness for the assignee.
Whether a motion for a new trial is a prerequisite to appealing a nonsuit granted on a question of law.
Whether a bill of sale's recital of consideration is conclusive evidence of payment.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“If in any case one partner can assign to another his interest in a firm claim and afterwards become a witness for him, he could not in this case, for the claim here sued on was clearly an unliquidated demand”

“The Court, we think, should not have granted a nonsuit. There was some evidence tending to prove an indebtedness”

“it is well settled that such recitals are only prima facie evidence, which may be rebutted or explained by parol proof.”

Synopsis

Ip in any case one partner can assign to another partner his interest in a firm claim and then become a witness for him, he cannot when the claim is for goods sold and delivered, because this is an unliquidated demand within the Practice Act.

The granting of a nonsuit on the facts is a question of law, and, if the proper exceptions be taken, may be reviewed on appeal without motion for new trial.

Nonsuit not proper where there is any evidence tending to prove the indebtedness.

In a hill of sale of goods sold and delivered a recital that the consideration was paid, is only prima facie evidence of that fact, which may he rebutted or explained by parol.

Baldwin, J. delivered tho opinion of the Court Terry, C. J. concurring.

This action was brought to recover a sum of money due for goods sold by Goodwin and plaintiff, partners, to the defendant, Goodwin assigning bis interest to the plaintiff. The case having been tried by the Court a nonsuit was ordered, from which plaintiff appeals. Two errors are assigned :

First—That Goodwin, who was offered as a witness for plaintiff, was rejected as incompetent. If in any case one partner can assign to another his interest in a firm claim and afterwards become a witness for him, he could not in this case, for the claim here sued on was clearly an unliquidated demand, within the meaning of the Practice Act.

Second—The second error assigned is in granting a nonsuit. A preliminary objection is taken that no motion for a new trial was made. Nor is any necessary. The granting of the nonsuit on the facts, being a pure question of law, which is properly raised on the record for review by exception taken.

The Court, we think, should not have granted a nonsuit. There was some evidence tending to prove an indebtedness, by [43]express contract or implied, from defendant to plaintiff. The fact that the bill of sale recited the consideration as paid did not conclude the plaintiff as to that fact, for it is well settled that such recitals are only prima facie evidence, which may be rebutted or explained by parol proof.

Judgment reversed and cause remanded.

Cravens v. Dewey

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