Martin v. Good

A paper containing the terms of settlement between two partners, by which each was to take certain specified accounts of t&e firm and pay certain specified debts, was placed in the bands of a witness to refresh his memory. Tile witness recognized the paper as in his handwriting, but did not remember where or when he wrote it., though he thought it was on the day of the settlement, and it must have been within a week thereafter. His memory vms not so refreshed, by reading the paper, as to enable him to recollect the amount of accounts taken or the particular debts assumed by each partner, but from the fact of its being in his handwriting, he had no doubt it did contain the true terms of the agreement made in his presence, and each and ail the terms of the contract, as stated in this paper, being read to the witness, he answered as to each, ho had no doubt it was part of the agreement made between the parties in his presence. Held: That this evidence was properly received. Where the writing is neither recognized by the witness as one which he remembers to have seen before, nor awakens his memory to the recollection of anything contained in it, but, nevertheless, knowing the writing to be genuine, his mind is so convinced that he is, on that ground, enabled to swear positively to tlio fact, the testimony will be received. Evidence that the general reputation of the plaintiff among his neighbors was that he was a tricky man, and would take liberties with paper in his hands, thereby altering its character, is not sufficient to prove that he had perpetrated a fraud on the defendant, nor is it, when followed by testimony, showing that the note given in evidence had been altered, süííicient or admissible to prove forgery or alteration of the note by the plaintiff. Two partners settled their business, each agreeing to take certain accounts and pay certain debts of the firm. One of them, on being compelled to pay a debt which the other had so agreed to pay, brought suit on this agreement. Held: That it was not a condition precedent to the plaintiff’s right to recover, that he should prove he had paid all the debts which he had assumed by the agreement. The addition of the word “and” between the signatures of two parties to a sealed note, does not change their liabilities on it.

Appeal from the Circuit Court for Baltimore county. Assumpsit brought on the 13th of December 3855, by the appellee against the appellant. Plea, non assumpsit, with leave to the plaintiff to offer any evidence which would be competent and proper, if there were counis in the declaration on the agreement stated to have been made between the parties in the following paper, which was filed in the case before the trial: “Articles of agreement made 1st of September 1847, between David M. Good and Samuel F. Martin, partners, of the fiffn of Good & Martin, both of Washington county, State of Maryland: Whereas, the firm has beeu dissolved for some time and the business remains in an unsettled state, the partners have (his day come to a conclusion to divide the assets of the firm and close the business. And as the parties are desirous of having a statement and condition, and considerations on which said business has been closed, and with a view of avoiding all misunderstanding in relation to the matter, we do hereby state such agreement and consideration to be, that the said David M. Good agrees, on his part, to pay sundry judgments in favor of John H. Duvall &> Co., Jacob Albert, J. W. Curley & Co., Powles, Hyde & Wallis, Marriott, Marye & Co., out of his own private funds, and, in consideration of which, the said Good agrees to take the accounts in favor of Good & Martin, contained in a list in folios 482, 483, 484,-amounting to $1066.19, and make out of them what he can, and apply them to his own private use. The said Samuel F. Martin, on his part, agrees to pay an account in favor of Heiser & Dougherty, an account in favor of Martin & Kemp, and a note in favor of widow Martin, out of his own private funds, and, in consideration of which, the said Martin agrees to take the accounts in favor of Good & Martin, contained in a list on folios 477, 478, 479, amounting to $1494.69, and make out of them what he can, and apply them to- his own private use.” 1st Exception. The plaintiff proved by Lantz, a competent witness, that he had known the plaintiff and defendant for a long time, and was acquainted with the handwriting of each of them, and that the signatures to the following note, shown to him and offered in evidence by the plaintiff, were the gen-uine signatures of the plaintiff and defendant respectively: “$450. Twelve months after date we promise to pay to1 the order of Barbara Martin, four hundred and fifty dollars,with interest for value received. Witness, our seal and signa-' ture, this 29th day of January 1846. D. M. Good, (Seal.) and Sam’l F. Martin, (Seal.)” This witness further proved that the plaintiff and defendant ■in 1846 and 1847, were partners in trade in the town of Lei■tersburg, Washington county, and, about that time, dissolved partnership. Witness was clerk of the firm while it existed under the name of Good & Martin. Barbara Martin, the payee of the above note, was a widow and the mother of the defendant, and witness knew of no other debt due by the firm to her. Some time after the partnership business had been discontinued, witness was present at a settlement between the plaintiff and the defendant at their store, when it was agreed that the accounts due the firm should be divided into two portions, and each partner should take one for his own use and should pay certain debts due by the firm. Witness made out the accounts. They were divided into two parcels, and each partner actually took and received the parcel allotted to him •under their agreement. Witness cannot now remember what was the amount of the accounts taken by each partner, or whom the accounts were against, nor what were the debts ■which each assumed to pay, and being asked whether the •above note was one of the debts agreed to be paid by Martin, ■says he has no recollection of it. The plaintiff’s counsel then ■showed the witness the paper above stated and filed in the case, for the purpose of refreshing the recollection of the witness, and asked him if that paper was in his handwriting, and if so, whether it contained a correct statement of the agreement between the plaintiff and defendant? to which witness answered that it was in his handwriting, but he had no recollection of the paper, and if it had not been shown, he should not have known that it had ever been written; he does not remember when or where he wrote it, but. he believes it was written in the store; or whether it was on the day of the settlement or a week afterwards; he thinks it was on the day; it must have been within a week; he does not remember how he came to draw it, or who asked him to draw it, whether Good or Martin, or both, or either of them, but he could not have been induced to put in it anything which he knew to be wrong or was not part of the agreement as he understood it; if either Good or Martin had asked him to draw it he would have done so, and he does not know that Martin knew anything aboiit it; witness was about eighteen or nineteen years of age at the time, but he is sure he would not have drawn it if he had not thought it was right; he has no doubt the paper contains a correct siatement ¡of the terms of the agreement, as he was present when the agreement was entered into, and the paper was written about that time, and he is sure he would not have stated anything in the paper he did not believe to be true. The witness also stated, in reply to a question by the plaintiff’s counsel, that his memory was not refreshed by reading the paper, so as to enable him to recollect the amount of accounts taken, or the particular debts assumed by each partner. Pie was then asked by the plaintiff’s counsel whether be had any doubt that the terms stated in this paper, in reference to the accounts to be taken and the debts to be paid by each partner, were tire terms of the agreement which was made in his presence, as testified to by him ? to- which he replied that he had no recollection of the particular accounts to be taken and the debts to be paid by each partner, but from the paper being in his handwriting, he had no doubt it did contain the true terms of the agreement made in his presence. The plaintiff’s counsel, after objection being made by the defendant's counsel to this mode of examination, and kind of proof, then read over in detail to the witness each and all the terms of the contract, as stated in this paper, and asked him, as to each, if he had any doubt whether that was part of the agreement made between the parties in his presence, and he replied, as to each, that he had no doubt it was, although, at the time of testifying, he had no recollection of the particular accounts to be taken -or of the particular debts to be paid by each; and, upon cross-examination, being asked whether, in his conscience, and on the oath he had sworn, he was prepared to say, that the contents of the paper truly stated the agreement ■he had heard between the parties? said that he was prepared to swear that the paper contained the agreement as he understood it. The court (Pkioe, J.) overruled the objection of the defendant’s counsel, and allowed (he testimony of the witness so taken to be given to the jury for the purpose of proving the contract sued on in this case. To this decision the defendant excepted. 2nd Exception. The plaintiff then offered in evidence the record of a suit against him by the administrators of Barbara Martin, on the note above mentioned, in the Circuit court for Washington county, showing the recovery of judgment against him and the payment thereof under execution issued thereon. The defendant then proved by the same witness, Lantz, that whilst the plaintiff and defendant were carrying on their business as merchants, they usually signed notes given by them as partners, in the name of .the partnership, Good & Martin; that Good was a sharp and intelligent merchant, and that the word “and” opposite the signature to the note offered in evidence, was in the handwriting of Good, as well as the body of the note. The defendant then, by his counsel, offered to prove by this witness that the general reputation of Good among his neighbors was, that he was a tricky man and would take liberties with paper in his hands, thereby altering its character. the counsel stating that' this proof was offered to show that the witness might have been imposed on, and he should follow up this testimony by further proof tending to show that the note given in evidence in this case had been altered. The court refused to allow any of the testimony so offered to be given to the jury, and to this ruling the defendant excepted. 3rd Exception. The defendant then .proved by a son of Barbara Martin, the payee of the note offered in evidence, and who lived with her for several years before her death, and attended to her business, that, during that time, ho repeatedly saw this note, and is certain that the word “and” was not opposite the signatures at that time, and has been put to it since. Upon all the testimony the defendant then asked the following instructions: 1st. If the jury shall believe that the note given to Mrs. Martin, and offered in evidence in this case, was given for the individual debt of Good, the plaintiff is not entitled to recover,unless they shall believe, from the proof in the cause, that the defendant subsequently agreed to pay the same. 2nd. If the jury shall believe the note in favor of Mrs. Martin was a partnership transaction, they must find for the defendant, unless they shall be satisfied from the evidence that the affairs of the partnership have been finally settled, and that Martin agreed to pay the same. 3rd. The plaintiff is not entitled to recover in this case, on the special contract, unless he proves the whole of the special contract, and in the absence of proof as to the claims contained' in folios 482, 483, 484, and in folios 477,478,479, the whole of said contract is not proved, and the plaintiff is not entitled to recover. 4th. If the jury shall believe that the special contract in this case has been sufficiently proved by the plaintiff, it is an entire contract, and the plaintiff is not entitled to recover unless he proves that he has performed all on his part to be performed. 5th. If the jury shall believe that the note to Mrs. Martin has been altered by Good for the purpose of changing the character of said note, and making it a note to bind the partnership, he is not entitled to have any recovery for any part of the same. The court granted the second prayer and refused the others, and to this refusal the defendant excepted. The verdict and judgment were in favor of the plaintiff for $772.41 damages and costs, and the defendant appealed.