Burns v. McKenzie

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action upon a promissory note executed to the plaintiff by “ McKenzie & Co.,” a firm composed of the defendants. Dickinson was defaulted, and McKenzie filed an answer alleging that the note was given by his copartner, Dickinson, for his own individual debt, and the partnership name was signed thereto for the purpose of defrauding him. The case was tried by a jury, who found for the plaintiff, and a judgment was accordingly rendered against both defendants, from which, and from an order refusing a new trial, McKenzie appeals.

On the trial the defendant McKenzie introduced one Moore as a witness, who testified that he first saw the note sued on some two or three days before it fell due, at his office, in the hands of the defendant Dickinson, and that he left it with him to have it presented to McKenzie for payment. On cross-examination the plaintiff asked the witness to state what Dickinson said at the time he left the note, to which the defendant objected that the statements of Dickinson were incompetent testimony against him, but the Court overruled the objection, to which the defendant excepted. The witness then testified that Dickinson stated that the note was made by the firm for money borrowed in the course of its business; that McKenzie should pay it, as he had the proceeds of the property, which he had left in his hands for that purpose. The refusal of the Court to sustain this objection is the first error assigned.

It appears from the pleadings and evidence that the partnership had been dissolved long before this conversation, and the appellant contends that these admissions of his copartner, therefore, are not evidence against him. Under the American decisions the rule is well established that admissions made by one partner, after the dissolution of the partnership, concerning the partnership business, are not competent evidence to charge the other partner, and this rule seems to be founded on the better reason than the contrary, which has been held in a few English cases. (1 Phillips’ Evidence, C. H. & E.’s Notes, 498, notes 138, 500; Clark v. Gleason, 9 Cowen, 57; Baker v. Stackpole, Id. 420; Robbins v. Willard, [1036] Pick. 464; Van Keusen v. Parmelee, 2 Comst. 530.) The respondent, however, insists that these admissions were a part of the res gestee, accompanying the delivery of the note to the witness Moore, and therefore admissible. There might be some force in this position if this act of delivery had been made for or on behalf of the partnership or his copartner, but it was made as the agent of the plaintiff, and in no sense was the act done for the partnership or his copartner. It was not, therefore, admissible on that ground.