Munson v. Wickwire

Storrs, J.

This being an action for a malicious suit, it was necessary for the plaintiff, in order to recover, to prove that the action brought against him, by the defendant and Richard Wickwire, was instituted, not only maliciously, but also without probable cause. That action was brought to recover of the present plaintiff the amount of certain moneys of the present defendant and the said Richard, which had been collected and received by said plaintiff for, and never paid over to them. On the trial of the present suit, the plaintiff, after having proved, as he claimed, that the defendant and the said Richard were partners, and that the moneys so collected and received for them, belonged to them jointly, offered to prove further, by the declarations of the said Richard, not made, however, in the presence of the de *516 fendant, that he, the said Richard, had, during the partnership, and before the bringing of the suit against the present plaintiff, received of the latter the said moneys sought to be recovered in that suit. As such a payment to said Richard would in law be a payment to both of the plaintiffs in that suit, it was clearly competent for the plaintiff in this suit, (who was the defendant in that,) to prove that fact, because it was relevant for the purpose of shewing a want of probable cause for the bringing of that suit.

But the question, and the only one made before us, is, whether the declarations of said Richard were admissible for that purpose. The defendant insists, that these declarations were inadmissible, because they were not made in his presence or hearing. This objection proceeds on a misapprehension of the character of the declarations. If they had been made by a person not interested in the subject of them, and not in the hearing of the defendant, they would be obnoxious to the ordinary objection against mere hearsay. If, however, they were made in his hearing, whether by a person interested or not in the subject of them, an admission by him of their truth, might have been inferred from the circumstance that he did not oppose or contradict them. They would stand, in that case, on the same ground as declarations made by the defendant himself personally. The declarations here, however, are not claimed to be, nor were they, admissible, for the purpose of proving an admission of that description.

But the plaintiff claims, that, in consequence of the peculiar relation that existed between the defendant and said Richard, when the declarations were made by the latter, they are to be deemed in law to be the declarations of both of them, and therefore as much express admissions by the defendant, as if he had personally made them. Assuming, as we must, for the purpose of this question, that the plaintiff had proved, that the defendant and said Richard were partners, and therefore jointly interested in the claim for the moneys received by the plaintiff, we are clearly of opinion, that the declarations of said Richard, offered in evidence, constituted admissions not only by him, but, consequentially in law, by his co-partner, the defendant likewise, of the payment to them by the plaintiff, of those moneys. They were *517 made by one, whose interest in the subject to which they related was identical with that of the defendant,—against their interest,—respecting a transaction between them, during their co-partnership, and the plaintiff,—material and relevant in their character,—and which respected facts within the peculiar knowledge of the declarant. If Richard, had not died since the bringing of this suit, but had continued to be, as he was originally, a co-defendant therein, his declarations on this subject would clearly have been admissible, against both himself and the present defendant. Bound v. Lathrop, 4 Conn. R. 336. Coit v. Tracy, 8 Conn. R. 275. 9 Conn. R. 1.

But we think, that the question of their admissibility is not varied, by the circumstance that he has thus ceased to be a party. The rule as to the admissions of partners is not confined to those who are parties to the suit. The declarations of one partner are not received against another, because he is a joint party in the suit, but on the ground of their unity of interest, which constitutes them, for this purpose, virtually one person. Therefore, the admission by one partner, may be received against another, though he be not served with process, or a nolle prosequi be entered against him. Bryce v. Watson, 3 J. J. Marshall, 498. 500. So, in an action by a creditor against some of a partnership firm, one of whom pleaded his certificate, and the plaintiff entered a nolle prosequi, the answer of this partner, to a bill filed against him, by other creditors, was received in evidence against the defendants, as an admission against those who were proved to be partners with him, and who were, therefore, as one person with him in interest. In Wood & al. v. Braddick, 1 Taunt. 104. it was held, that the admission of a partner, though not a party to the suit, as to a transaction which took place during the existence of the partnership, is evidence against another partner who is sued, as to joint contracts during the partnership, whether made after the determination of the partnership, or not. And this case has been approved by this court, in the cases which have been cited from our reports. (See also Cowen’s notes, 175. 176. 177. 178. to 1 Phillipp's Evid. 92, 93.) Indeed, there is no diversity of decision on the question, whether the declaration of one partner is admissible in a suit against another, *518 although the former is not a party to the suit, whenever the admission is such that it would be admissible, if the suit were against both. There has been a question in the courts of some of the other states, whether the English rule, as established in Wood & al. v. Braddick, should not be so limited, that the admission of a partner, in order to affect his co-partner, should be made during the existence of the partnership. (Cow en's note, 176. to Phill. Ev. 93.) We have here, however, adopted the English rule, without that qualification; and, moreover, no question has been made that the declarations, in the present case, were made before the partnership was terminated.

We would only add, that we have no doubt that in the suit brought by the present defendant and Richard W. against the present plaintiff, (which the latter here claims to have been malicious,) the declarations of Richard W. here offered would have been admissible to prove payment, by the defendant, to the plaintiffs in that suit, of the moneys received by the former; and that if, after the death of Richard, the present defendant, as his survivor, had brought a suit for the recovery of those moneys, the same declarations would have been admissible for the same purpose; and we discover no reason why, where the parties have only changed sides, the rule of evidence should not be the same.

We are, therefore, of opinion, that the declarations in question, should not have been excluded; and that a new trial should be granted.

In this opinion the other judges concurred, except Ellsworth, J., who was disqualified, by the statute of 1852, c. 24. § 4. p. 36.

New trial denied.