Young v. Smith

RylaND, Judge,

delivered the opinion of the court.

We do not perceive what injury the plaintiffs below received by the court’s overruling their motion to be permitted to read only certain portions of the deposition of the defendant Smith, which the plaintiffs had taken, to the jury as evidence in chief, and afterwards to be permitted to read the balance of the deposition as rebutting testimony. We will not interfere in the discretionary determination of the lower *345 court,' in such matters, especially where no injury appears to follow to either party. To say the least of this objection to the ruling of the court below, it is captious, and we give countenance to no such practice. The plaintiffs may begin their evidence at either end of the case; but when they offer a deposition and the court holds the same to be legal evidence, then the court may refuse with great propriety to let them pick out and.read certain portions at one time, and other portions at a different stage of the trial, to gratify the whim or taste of their counsel.

As to the plaintiffs’ second point about the cross-examination of Smith, we do not see how the overruling their motion to strike out certain parts of this deposition can injuriously affect them. Smith was their witness. They gave sanction to his veracity by taking his deposition ; and although the plaintiffs are bound, in proof of their case, to confine themselves to evidence relevant to the matters in issue, and the defendants restricted to the same, yet in cross-examinations questions as to collateral facts are often allowed ; nor is the rule confining the proof to the allegation strictly followed in cross-examinations, but great latitude of interrogation is permitted at times. In Lawrence v. Baker, 5 Wendell, 305 , Savage, Ch. Justice, in delivering the opinion of the court, said : “ A witness is *not to be cross-examined to a distinct collateral fact for the purpose -of afterwards impeaching his testimony by contradicting him.” (1 Starkie, 134.) There may be cases where great latitude of examination may be permitted, arising from disposition, temper and conduct of witnesses, ■which can be regulated only by the discretion of the court, and for which it is difficult to lay down a precise rule. We will not therefore disturb the judgment for the overruling of this motion.

The third point taken by the counsel for the plaintiffs in error is fatal to the judgment below. This was a suit against Smith and Huffaker — the plaintiffs contending that Huffaker was a partner. Now it is often the case that the conduct of persons makes them stand liable to third parties as partners, *346 when in reality between themselves there is no partnership. In this ease the main question in controversy is, not whether Smith and Huffaker were in reality partners trading and doing business as merchants under the name of “ C. M. Smith,” biit whether they so acted, so cax-ried on the business, as to induce third persons to look upon them as partners, to consider them as partners, and trade with them as partners. “ There is a just and marked distinction between partnership as respects the public and partnership as respects the parties; and a person may be held liable as a partner to third persons, although the agreement does not create a partnership as between the parties themselves. Though the law allows parties to regulate their concerns as they please in regard to each other, they can not by arrangement among themselves control their responsibility to others; and it is not competent for a person who partakes of the profits of a trade, however small his share may be, to withdraw himself from the obligations of a partner.” (8 Kent’s Com. 32.) Therefore, when the plaintiffs sued these defendants, it was not competent for them to give in evidence the declarations of Smith that Huffaker was not his partner. Judgment by default had been taken against Smith. Huffaker answered— denied the partnership, the execution of the note sued on, and his liability for the goods. Upon the trial, -Huffaker’s administrator (he having died after filing his answer) offered in proof the declarations of Smith. These were admitted against the objection of the plaintiffs. These declarations were not made in presence of these plaintiffs, but were in their absence. The court erred in receiving them. They were incompetent; they can not be considered as res gestee, as verbal acts. Such testimony would enable a crafty set of men to carry on an extensive operation as partners to the world, but when preparation was about to be made necessary to a failure, then one might withdraw with all the funds and stock, and honest, confiding creditors be met with the assertion “ that they never were partners; that there was no partnership,” and prove it when sued for their just demands by *347 declarations made to and about each other during the time they were seemingly engaged as partners. No such declarations should have been received.

The fourth point made is settled by repeated decisions of this court since the new code of practice. (Rice v. Morton, 19 Mo. 279 ; 17 Mo. 367 ; Young et al. v. Croughton et al. and Rankin v. Harper, 23 Mo. 587 .)

The fifth point regards the first instruction asked for by the plaintiff. “ 1st. This being a suit between Thomas Young and others, as plaintiffs, and Constantine M. Smith, and Chas. H. Thornton as administrator of Francis M. Huffaker, deceased, defendants, the jury are not called upon in this suit to settle the matter between said Smith and Huffaker as to whether they were partners or not as between themselves. 9th. All evidence offered by defendants of the admissions of said Smith and Huffaker, or either of their statements to one another as to third persons, when not made in the presence or hearing of plaintiffs, is not competent as against the plaintiffs, and the jury will find accordingly. 10th. The pi’ivate arrangements or contracts of Smith and Huf-faker, offered in evidence on the part of the defendants, or either of them, to which plaintiffs were neither party nor privy, are not competent evidence as against the plaintiffs to disprove the partnership of said Smith and Huffaker.”

The refusal of the court to give this instruction we consider was improper. The court ought to have so instructed the jury. It was necessary to place them in possession of the true nature of the case they were trying. They were not trying or settling the question of partnership between Smith and Huffaker so far as they were alone concerned, but whether the facts in proof were not sufficient under proper legal instructions to consider them partners as regarded the rights of third persons. This was error.

The sixth point relates to the ninth and tenth instructions above copied. The substance of these instructions ought to have been given. The ninth has an awkward conclusion which had better have been omitted, and to the tenth there is no legal objection.

*348 The seventh point, that the court erred in giving the second instruction for the defendants, has nothing in it, and the eighth point only regards the newly discovered evidence, which was not sufficient to authorize the granting of a new trial. It is but cumulative. These are all the grounds relied on here by the plaintiffs’ counsel for a reversal of the judgment below, and we have disposed of them in a short and rapid sketch.

The defendants below contend that Smith was not a competent witness for plaintiffs. He is made so under the 11th section of the new code, art. 24. In looking over the whole case, we come to the conclusion that the court below committed error in admitting Smith’s declarations, that Huffa-ker was not his partner, to be given as evidence before the jury. It also erred in refusing the first, ninth and tenth instructions asked for by plaintiffs. The judgment must therefore be reversed, and cause remanded for further proceedings ; Judges Scott and Leonard concurring.