Salinas City Bank v. De Witt

Harrison, J. The plaintiff seeks to establish a joint liability against the defendants for the amount of an over-draft at its bank. The making of the over-draft was by the defendant George De Witt, and the plaintiff seeks to hold the defendant William De Witt liable therefor by showing that a partnership relation existed between the two. The complaint, which is unverified, alleges “that the defendants are indebted to the plaintiff, on account of moneys had and received by them from the plaintiff [79]at their special interest and request, in the sum of $865,” and “that the amount of the said indebtedness is the balance of an account had by the defendants with the plaintiff, wherein the defendants deposited money with the plaintiff and drew money from the plaintiff, and the said sum is the balance of the said account, consisting of what is called an over-draft, .and interest thereon.” To this complaint the defendant William De Witt made .a general and specific denial. The case was tried by the court, judgment was rendered against him, from which, and also from an order denying his motion for a new trial, he has appealed.

It was essential for the plaintiff, in order to fix the liability of William for the acts of George, to show that a relation of partnership existed between them, or that by virtue of some express or implied authority, George was the agent of William in making the over-draft; and in order to establish this relation, several witnesses were permitted to testify on behalf of the plaintiff to certain declarations made by George, in the absence of William, that William and he were partners. ' The appellant duly objected to this testimony, but his objections were overruled, and these rulings of the court are now assigned as error.

The admissibility of such evidence was before this court in an action against the same defendants (Vanderhurst v. De Witt, 95 Cal. 57), and it was there held to be a settled rule of law that such evidence is incompetent to establish the fact of partnership; and upon the authority of that case the judgment and order denying a new trial herein must be reversed.

The respondent appears to concede that the admission of this testimony was error, but urges that it was an immaterial error, for the reason that there was other evidence before the court sufficient to sustain its finding upon this issue. We cannot, however, accede to this proposition. The fact that appellant held such relation was controverted both by the pleadings and at the trial, and the evidence offered in support thereof, aside from