Carlton v. Coffin

Evidence to prove partnership. Statute of limitations. Partnership. To prove that a person was a member of a firm, testimony showing that lie had a deed of an undivided portion of their property, and that, with his knowledge, suits at law and in chancery respecting said property were instituted by and in the name of the firm in which he was joined as plaintiff, and that he took an active part in advising about, aud in making repairs upon said property, is admissible. If a partner, who is the agent of the firm for making disbursements, &c., make a payment, as such agent, upon a promissory note previously given by the firm, it will be presumed to have been made out of the partnership funds, and will prevent the running of the statute oflimitations against all the partners. Such a payment is to be treated as a,payment by all of the firm on their joint account, and not as that of the paying partner only.

Assumpsit upon a promissory note, dated Marcli 12, 1845, for $ 385.78, payable on demand, signed, “ For the Ludlow Woolen Mill, George S. Coffin, agent.” The defendants were described in the writ as “ formerly co-partners in the manufacturing business at Ludlow, under the firm and style oí the Ludlow Woolen Milll.” Plea, the general issue, and the statute of limitations; trial by the court, by agreemnt of the parties, May Term, 1855, — Underwood, J., presiding. The plaintiffs put into the case a copy of a deed, from Wm. Stur,gess and others to George S. Coffin and Shepherd Adams, dated 21st October, 1843, of about 4 acres of land in Ludlow, with the factory and other buildings thereon; also a copy of a deed from G. S. Coffin to Albert Day, dated 15th December, 1843, of two tenths of the Woolen Mill, &c; also a copy of a deed from George S. Coffin to P. S. Coffin, same date, of one tenth of said mill, &c; also a copy of a deed, Shepherd Adams to Abraham Adams, dated 16th November, 1843, of one-half of his interest in the factory, &c; also a bill in chancery, Abraham Adams, Shepherd Adams and Albert Day v. Jacob Patrick filed in the clerk’s office, December 18th, 1847, and sworn to by Abraham Adams. The foregoing deeds and bill were offered with other testimony to show that Abraham Adams was one of the partners of said firm, called “ Ludlow Woolen Mill.” The defendants objected to receiving, but the court admitted them; to which the defendants excepted. Tlie plaintiffs also put into, the case a writ in favor of Albraliam Adams, Shepherd Adams, Perley S. Coffin and Albert Day against Warner, Manning and others, for the same purpose, having proved that the said Abraham caused said writ to be made; to the receipt of which the defendants also objected, but the court admitted it, and the defendants excepted. It appeared from the evidence that the note in suit was given for repairs on the woolen mill, from the fall of 1843 to the fall of 1844; and that in making said repairs, and in advising about the same, Abraham Adams took an active part, and also took an active part in the manufacturing at the mill; but to the testimony going to show Abraham Adams’ connection with the same, the defendants objected, but the court admitted it, and the defendants excepted. The defendants put into the case articles of partnership, signed by Shepherd Adams, George S. Coffin, Albert Day and Perley S. Coffin, professing to be the proprietors of the brick factory at Ludlow, associating themselves under the name of Ludlow Woolen Mill, dated DecemberJL 6th, 1843 ; and it appeared that Abraham Adams signed this paper with the others at the time it was executed, but that his name, after two months, was rubbed out for the alleged reason that a bill in chancery was commenced against the Green Mountain Company, charging said Abraham as a partner, and it was thought best that his name should not appear as one of the firm of the woolen mill, until that suit was ended. It appeared that the said Abraham Adams took an active part, and was engaged in the business of the woolen mill, from December 1843 to 1847, buying wool and attending to repairs, &c. From the conduct of said Abraham in the business before referred to, the several deeds and papers put into the case, the bill in chancery sworn to by him, and the writ procured by him to be made, the court found that said Abraham was, in point of fa.ct, a partner from the time of the executing of said articles of partnership, until after the signing of the note in suit, and one of the firm of the woolen mill company. As to the statute of limitations, the plaintiffs put into the case testimony tending to show the general agency of Shepherd Adams in the affairs of the company, and it appeared from the testimony in the case that he was their agent to make disbursements, &c.; and that on the first day of ‘ June, 1846, he, as agent of the company, made a payment of fifty dollars in money on the note in suit, which was then endorsed on the same; and thereupon the court rendered judgment for the plaintiffs to recover the balance of said note. To the admission of testimony by the court as aforesaid, and to the judgment so rendered, the defendants excepted. I. The copies of deeds, bill in chancery, and writs were improperly received. The deeds and bill in chancery concerned the real estate only, and could furnish no evidence of a co-partnership in the manufacturing business. II. The testimony did not authorize the conclusion in law,, that the statute bar was removed. The agent, without special authority for that purpose, had no power to acknowledge a debt, so as to remove the statute bar. The making a payment on the note by the defendant himself, is only an acknowledgment; and the legal effect is precisely the same as though the party, instead of making a payment on the note, had acknowledged that it was fairly due. III. Shepherd Adams was a joint contractor in said note; a payment by him, therefore, was as such joint contractor, and could not affect his fellow contractors; Comp. Stat. 381 §26. Neither could his acknowledgement of the debt have any effect upon the statute as to the other contractors; Comp. Stat. 380 §22.