Bryce v. Joynt

McKee, J. In thiscase the only issue raised by the pleadings involved the question: Whether Oren Joynt, the appellant, was at the dates of the transactions in controversy, a co-partner with the other defendants in the firm of Hubard Ward & Company. The transactions with the company took place in March, 1877.

At the trial of the issue, after evidence had been given on behalf of the plaintiffs, tending to prove that on the first of March, 1876, Oren Joynt, George C. Joynt, and Hubard Ward formed a partnership, under the firm name of Hubard Ward & Co., and that in March, 1877, Oren Joynt was still a member [377]of the firm and continued therein until the failure of the firm in the fall of 1877, counsel for the plaintiffs proved the identity of the cash book, journal, and ledger of the firm, and, in connection therewith, gave evidence tending to prove that the defendant, during the years 1876-77, had had access to the books, and on several occasions had examined them and caused balance sheets to be taken from them and rendered to him. Upon that evidence the plaintiffs then offered some of the entries in the books and the books themselves as evidence, and, over the objections of the defendant, the court admitted them, and the ruling is assigned as error.

In and of themselves the books were not admissible for the purpose of proving partnership. Until there was evidence of the fact, at the times of the entries on the books, the entries are to be regarded as res inter alios, mere declarations of a third person, not made under oath, which are not binding and are inadmissible to prove the fact. Partnership, like agency, must be proved by evidence aliunde. But when there is such evidence, sufficient in the judgment of the court to lay the foundation for the admission of corroborative evidence, then the books and the entries therein may be admitted as the acts and declarations of parties between whom such a relationship exists. (Abbott v. Pearson, 130 Mass. 191; Robins v. Warde, 111 Mass. 244; McNeill’s Ears. v. Reynolds, 9 Ala. 313.)

The case of Hale v. Brennan, 23 Cal. 512, like the case in hand, involved a question of partnership, i. e., whether there existed, between the plaintiff and the testator of the defendant in the case, a co-partnership in the business of keeping a hotel. At the trial it was admitted that the plaintiff was owner of one half of the hotel; evidence was also given tending to prove that the business had been, carried on and the books kept in the name of the “ Santa Cruz Hotel”; that the entries in the books had been made by the testator and the clerk of the hotel, and that, after the death of the testator, the plaintiff had taken possession of the books. Upon that proof the books were offered and admitted in evidence, and it was held they were properly admitted. “ They may,” say the court, “have offered very little evidence upon the main question; . . . . but if they afforded any they were admissible.”