Bucknam v. Barnum

Where A, B and C entered into articles of agreement with each other, to fit out an adventure to Texas, for the mutual benefit of all; A and B were to furnish all the capital and make the purchases here, in their own names; B and C were to go out to Texas with the goods; C was to travel about the country there, dispose of the goods and procure remittances; B was to receive a certain sum per month for his services; C was to receive one fifth part of the nett profits of the adventure; and the remaining four fifths were to be divided equally between A and B; it was held, that A and B were liable as partners with C, especially as between them and third persons, who found them carrying on such joint adventure for their mutual benefit. Where the defence to an action by the indorsee of a promissory note, against the maker, was, that it was then the property of the original promisee ; and to establish this fact, the defendant offered testimony as to the books of such promisee, without producing them, and as to his declarations ; it was held, 1. that if any thing could be proved by the books, they should be produced, or some legal reason given for their non-production ; but 2. that neither the books nor the declarations of such promisee were admissible, he not being-party or privy in interest with the plaintiff, the fact to be proved being in his favour, and he being alive and a competent witness in the cause. In an action between A and B, the declarations of C, a third person, are not admissible, on the ground of his being a party in interest, until his character as such party in interest, is established, by other proof than the declarations offered.

This was an action brought by Jesse Bucknam, as indor-see of a promissory note, against Daniel Barnum jr., Alan-son Taylor and Frederick W. Smith, as makers, alleged to be partners under the name of D. Barnum & Co. The note was made in the city of New-York; the partnership name of the defendants was subscribed thereto ; it was for the sum of 477 dollars, dated the 23rd of January, 1839, and was payable to A. W. Sanger, or order, six months after date. The defendant, Smith, was defaulted. The other defendants pleaded the general issue ; on which the cause was tried, at Danbury, September term, 1841, before Church, J. It was admitted, that the note mentioned in the declaration was indorsed by Sanger, the payee, to the plaintiff, before it became due. The defendants insisted, that the note, after such indorsement, and before the commencement of this suit, had been reassigned and transferred, by the plaintiff, to Sanger, and had ever since been his property. In support of this claim, the defendants offered in evidence the deposition of Nestor H. Sanborne. The plaintiff objected to the admission of certain portions thereof, which are here distinguished by quotation marks, on the ground that the books therein mentioned were not produced, nor any notice given to produce them ; and also, on the ground that such evidence was hearsay. The deposition, after stating that the deponent was the clerk and book-keeper of A. W. Sanger, in the city of New-I ork, in the year 1839 ; that he found on his books, the entry of a note, in Sanger’s favour, signed by D. Barnum & Co. for somewhat over 400 dollars, which note was then in Sanger’s hands ; that this note was sent to Jesse Bucknam of Boston, [the plaintiff] and charged to him, by deponent; that it was afterwards returned to Sanger, and “ credited on his books to said Bucknam that it was then sent, by Sanger, to Reuben Booth Esq. of Danbury, for collection ; that “ deponent credited said Bucknam with said note, by direction of said Sanger, and charged said Booth with said note, when sent to him as aforesaid. Deponent made out a balance-sheet from said books, monthly, and said note so charged as aforesaid was always included as a part of the debts due the concern, till their dissolution. Said Sanger, in looking over the ledger, on seeing the entry of said note, frequently remarked, that “ that was one of Pierce’s bad debts.” In the forepart of December, 1839, deponent took an account of stock in the store. “ Shortly after that, Sanger told deponent, that he had dissolved partnership with Mr. Bucknam, and he, Mr. Bucknam, had nothing more to do with the concern : that he, Sanger, had taken the whole into his hands. The note above-mentioned was included in said account of stock. Sanger also told deponent, then, to be very particular about the keeping of the accounts, as Mr. Bucknam had nothing to do with the concern.” The court excluded the evidence objected to. The defendants, Barnum and Taylor, also insisted, that Smith, who had been defaulted, was not a partner with them, at the time the note was given, and was not jointly liable with them thereon. In support of this claim, they offered in evidence, the original articles of agreement, entered into between the defendants, before the commencement of their business, of which the following is substantially a copy: “ Articles of agreement this day entered into between Daniel Barnum, jr., Alanson Taylor and Frederick W. Smith, all of Danbury, Fairfield county, and state of Connecticut. “1. The said Barnum and Taylor are to furnish all the capital, and purchase, in their own names, or either of them, all articles, which they may see fit and 'proper, to fit out an expedition or adventure to Texas, for the mutual benefit of all; which adventure is to be got out forthwith. “ 2. The said Taylor and Smith are to go out to Texas, with such goods as shall be ready prior to their departure, and receive all which may be shipped to them, by said Barnum, afterwards ; and well and faithfully sell and dispose of them, for cash or other articles, which they may consider preferable to remit: all to be done for the mutual benefit of said Taylor, Barnum and Smith. “ 3. As a compensation for such services, the said Taylor is to receive from the said company 30 dollars per month, and his expenses only, provided the nett profits of said adventure shall not exceed 1000 dollars, at the expiration of six months from the day of sailing from the city of New-York. But if the nett profits of said adventure shall exceed the said sum of 1000 dollars, at the expiration of said six months, then said Taylor is to receive, in manner aforesaid, 60 dollars per month, and his expenses until his return. “ 4. As a compensation to said Smith, he is to receive the equal one fifth part of all the nett profits of such adventure, together with his necessary expenses. He is to pay his own passage out, but is to receive the amount so paid again from said company. “ 5. The remaining four fifths of the nett profits of said adventure are to be equally divided between said Barnum and Taylor. “ 6. The said Smith is to travel about the country in Texas, for the purpose of selling goods, making customers and collecting articles to remit to New-York, such as furs, bearskins, deer-skins &c., and is to continue in Galveston or Houston, as may be thought proper, in charge of the business, during the summer and autumn of 1839. “ 7. In case the vessels in which the goods for said adventure are transported, should be shipwrecked or lost, the said Barnum and Taylor are to have the benefits of the insurance thereon exclusively. “ 8. All remittances in cash, are to be made to Gideon Free-horn of the city of New-York, as soon and as fast as practicable ; and all other remittances are to be made to Daniel Barnum, jr., to the care of Samuel G. Starr & Co. of said city, as promptly as the interests of said adventurers may require. “ In witness whereof, we do hereunto respectively set our hands and seals, at New-York, this 20th day of November, A. D. 1838.” [Signed by all the defendants.] The defendants, Barnum and Taylor, thereupon prayed the court to charge the jury, that Smith did not, by means of said articles of agreement, become a partner with them in the business. The court charged the jury, that by means of said articles of agreement, Smith did become a partner with Barnum and Taylor. The jury returned a verdict for the plaintiff; and the defendants moved for a new trial for a mis-direction. contended, 1.That the declarations of Sanger were admissible to prove him the party in interest. Sw. Eu. 129. 1 Phil. Ev. 232. 257. n. 446. 444. 481. (by Comen and Hill.) 2. That hearsay evidence is admissible as constituting a part of the transaction which is the subject of enquiry. 1 Phil. Eu. 231. 3. That by the articles of agreement, Smith was not a partner. Loomis v. Marshall & al., 12 Conn. Hep. 69. 85. Wilkinson v. Frasier, 4 Esp. 182. Wish v. Small, 1 Catnpb. 231. n. contended, 1. That that portion of Sunborne’s deposition, which was objected to, was properly excluded. In the first place, it was irrelevant; for if the note had been in truth re-assigned to Sanger, it would be no defence. Gage v. Kendall, 15 Wend. 640. Burdick v. Green, 15 Johns. Rep. 247. Lovell v. Evertson, 11 Johns. Rep. 52. Secondly, the testimony excluded was mere hearsay, and, on that ground, was properly ruled out. Fitch v. Chapman, 10 Conn. Rep. 8. 12. 2 Phil. Ev. 663. to 668. (by Cowen and Hill.) 2. That all the defendants were liable in this action, as partners. 1 Sun Dig. 337. 339. Collyer, 2. 15. Chill. Cont. 193. Everilt & al. v. Chapman & al., 6 Conn. Rep. 347. Gouthwaite v. Duckworth & al., 12 East 421. Dob & al. v. Halsey, 16 Johns. Rep. 34.