Turner v. W. E. Lovett & Co.
Before: Rhodes
Synopsis
Testimony of Absent Witness—Insufficient Admission on Motion fob Continuance.—Lovett and Adams were partners, under the firm name of W. E. Lovett & Co.; Adams sold his interest to Flint, who received in part payment a promissory note signed hy the firm name, and afterwards transferred it to other parties who, at maturity, sued for payment. On the trial the parties defendant moved for a continuance, to procure the attendance of Flint as a witness, and in support of the motion, an affidavit was filed stating, that if present, Flint would testify that he had nothing to do either with the execution or delivery of the note, or with the direction of the business of the firm. The plaintiffs admitted that, if present, Flint would testify that he did not sign the note nor authorize any one to sign it for him. On this the Court denied the motion for a continuance, and proceeding with the trial found, that as the note had been signed by Lovett in the firm name, in the presence of Flint, the latter held himself out to the world, hy the transaction, as a partner. Meld: first, that the testimony of Flint, as stated in the affidavit, was competent and material upon the question involved in the finding; second, that the admission of the plaintiffs was not broad enough to cover all the material facts to which defendants expected Flint would testify.
By the Court, Rhodes, C. J.: It is not now contended that Thomas Flint was, in truth, a member of the firm of W. E. Lovett & Co., but it was [524]found by the Court, that the promissory note was signed by Lovett in the firm name, in the presence of Flint, and that he and Lovett delivered it to Adams, the payee, in part payment for his interest in the partnership property, which was then sold by him to Flint; and it was also found that Flint held “ himself out to the world as a partner of the defendant Lovett, by the transaction aforesaid.” In the affidavit which was filed in support of the motion for a' continuance of the cause* it is stated that Thomas Flint, if present, would testifythat he had naught to do with and was wholly unconnected with either the execution or delivery of the promissory note, or with the direction of the business of the said firm of W. E. Lovett & Co.” On the hearing of the motion, the plaintiffs admitted that Flint, if present as a witness, would testify “ that he did not sign the note, in the complaint mentioned, or authorize the same to be signed.by any one for him;” and thereupon the Court denied the motion for a continuance. The- testimony of Flint, as stated in the aliidavit above alluded to, was competent and material upon the question involved in the finding last above mentioned, as that finding was based upon the alleged participation of Flint in the transaction, in which the note was made and delivered. The admission of the plaintiffs did not extend to all the matters which the defendants expected to prove by Flint. ""They did not admit that he would testify that he -was unconnected with the delivery of the note or with the direction of the business of the firm. The admission was not broad enough to cover all the facts, to which the defendants expected that Flint, if present at the trial, would testify, and the continuance should have been granted.
Judgment and order reversed and cause remanded for a new trial.
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