George D. Dutton & others vs. Ivory F. Woodman & another.
In an action against A. and B- on a promissory note, signed by A. & Co., the point in issue being whether B. was a partner in the firm of A. & Co. at the date of the note, evidence that until A. commenced business under the firm of A. & Co., his credit was bad, is entirely irrelevant.
In an action against two, as alleged copartners, evidence of statements and declarations, which would be admissible only upon the assumption of the existence of the copartnership, is incompetent to prove such copartnership.
On the reexamination of a witness, no questions can be put which do not relate to matters inquired into on the cross-examination.
The fact sought to be established by the plaintiffs in a suit being the existence of a copartnership between the defendants, under a certain name, a judgment recovered by the same plaintiffs against the same defendants, as copartners, under such name, on a note given at the same time with the one in suit, is admissible, though not conclusive evidence of that fact.
In an action on a promissory note, against A. & B., as copartners, under the name of A. & Co., B. denying that he was a partner of A. at the date of the note, a letter written by a third party, who was a salesman and purchasing agent of A. & Co., to B., in which the writer said, that A. had stated to him that a copartnership had been formed between A. and B., and that he wrote to ascer *256tain whether B. was “ really responsible, as one of the partners, for the payment of the goods bought for this store/’ adding, “ this proceeding is rendered necessary, from the fact that you will need, or, at least, do need now a credit, in order to carry on the business successfully,” and “ I write this with the knowledge of A,” which letter was never replied to by B., — taken in connection with a subsequent conversation between the writer and B., in which the letter was talked about, and B. was again asked by the writer, whether he was a partner in the firm of A. & Co., to which he replied, that he should neither admit nor deny it,— is competent evidence to be submitted to the jury, in connection with the other testimony, to prove the copartnership.
This was an action of assumpsit, to recover the amount of a note for $480.97, dated the 26th of October, 1848, payable in six months, and signed by I. F. Woodman & Co. It was tried before Mellen, J., in the court of common pleas. No service was made on Ivory F. Woodman, but the other defendant, E. W. Woodman, was arrested and held to bail. At the trial he filed, as a specification of defence, that he was not a partner of I. F. Woodman, and never was a member of the firm of I. F. Woodman & Co.
The plaintiffs offered J. C. Thurston as a witness, who testified that he had known I. F. Woodman since 1844, and was employed in his store from June, 1848, to January, 1849, as salesman and purchaser, and that, in May, 1848, Woodman went into insolvency as a partner of one Alexander, under the name of Woodman & Alexander; that one Hazard purchased the stock of goods and assets of Woodman & Alexander, and continued the business in the same store, in North Market street, in Boston, until September, 1848 ; that, in September, 1848, a change was made in the signs on the store, and that the name of I. F. Woodman & Co. was painted on the doorposts and signs, and the business of the store was done in the name of I. F. Woodman & Co., from September, 1848, to January, 1849; that, in January, 1849, the property in the store was attached, and a keeper put in, and that the business then passed into the hands of other persons, the firm of I. F. Woodman & Co. having failed.
The plaintiffs inquired of the witness whether or not the credit of I. F. Woodman was good in the summer of 1848, and until the change of September, above spoken of. This *257was objected to by the defendants, and the presiding judge sustained the objection, and ruled that the question could noi be asked.
The witness further stated that, in January, 1849, while the stock in the above-named store was under attachment, he saw E. W. Woodman in the store, and had a conversation with him; that the witness asked him, at the time, if he was a partner in the firm of I. F. Woodman & Co., to which Woodman replied that he should neither admit nor deny it. The witness then told him that his brother, I. F. Woodman, had told the witness that he, E. W. Woodman, had come to Boston with funds, notes, &e., in order to settle up the affairs and go into business; to this E. Woodman replied, that he found things so different, that he had done or should do nothing about it. The witness furthermore said that, on the L2th of October, 1848, he wrote to the defendant, E. W. Woodman, saying.:—
“ I learn from your brother, I. F., that you have formed a copartnership with him, and contemplate coming to this city to assume an active part in the concern. As there has been no public announcement made to that effect, and as you are not here, I have written to ascertain if you consider yourself really responsible as one of the partners, for the payment of the goods bought for this store. This proceeding is rendered necessary from the fact that you will need, or, at least, do need now a credit, in order to carry on the business successfully. I write this with the knowledge of your brother, feeling that it is for the interest of this concern to know whether you wish to be considered as a partner, and are willing to assume the responsibilities as such.”
That to this letter he never received an answer in writing; that, at the interview between him and E. W. Woodman, in January, 1849, the latter told him that he received this letter of October 12, 1848, but that he was absent from Wilton when it arrived, and that, shortly after he did receive it, he saw his brother, I. F. Woodman, and that he did not consider it necessary to answer it, and that this was the reason why he did not answer it. The witness was asked as to the con*258tents of this letter, but the defendant objected to such inquiry, because the letter itself was the best testimony. The plaintiffs offered to read the letter, after having shown it to the judge and to the defendant’s counsel, and to the witness, who identified it; but, upon objection by the defendant to its introduction, the judge ruled that it was inadmissible, as it was not written by the plaintiffs.
The plaintiffs then asked the witness, if, at the time of the purchases made by him, in September, of the plaintiffs for I. F. Woodman & Co., he was directed by the plaintiffs to write the letter referred to by them. This was objected to by the defendant, and the objection was sustained.
The judge also ruled that no statements made by Thurston (either before or after the date of this letter) to the plaintiffs, as to the connection of E. W. Woodman with I. F. Woodman, or as to the credit of the latter, were admissible; and, furthermore, that all inquiries made by the plaintiffs of Thurs-ton, as to the credit of the firm, or as to who its members were, were inadmissible.
On cross-examination of the witness, it appeared that he guaranteed to the plaintiffs the amount of their claim, at the request of I. F. Woodman, from which guaranty he had since been released; that he received from I. F. Woodman, for such guaranty, a promise of indemnity.
On reexamination, the plaintiffs claimed the right to ask the witness what was said to him by I. F. Woodman at the time this indemnity was promised him; but the judge ruled that the plaintiffs could not pursue the inquiry, as no conversation was opened by the defendant on the cross-examination.
The witness further testified that the note in this case was given for an account running from September 25 to December 2, and that it was drawn by him and signed by I. F. Woodman, in the month of December, 1848, and dated back. He also testified that he drew another note, shown to him, dated December 2, 1848, for $85, signed I. F. Woodman & Co., but he would not say whether it was signed on the day of its date or not, as he did not recollect.
*259The plaintiffs then offered in evidence a judgment on a verdict rendered against E. W. "Woodman and I. F. Woodman, as partners, in favor of these plaintiffs, at the October term of the court of common pleas, 1849, upon a note of $85, as above referred to; but the judge ruled that, even if this was proved, the judgment would not be admissible as evidence.
The plaintiffs offered to prove that Thurston was told by I. F. Woodman, that his brother, E. W. Woodman, was his partner, before he wrote the letter; that he, Thurston, repeated this statement of I. F. Woodman to the plaintiffs; and that, at their request, he wrote the letter; but the judge ruled that it was not competent for him to prove these facts.
To the above rulings the plaintiffs excepted.
I A. Loring, for the plaintiffs,
cited Collyer on Part. (3d Am. ed.) 75, 76; 1 Greenl. on Ev. §§ 197,199; Clarges v. Forster, 13 East, 405; Commonwealth v. Call, 21 Pick. 515, 522; Thayer v. White, 12 Met. 343; Commonwealth v. Eastman, 1 Cush. 189, 215; 1 Greenl. Ev. § 201; Goodhue v. Hitchcock, 8 Met. 62; 1 Phillips Ev. 83; Thommon v. Ealbach, 12 Serg. & Rawle, 238; Morisey v. Bunting, 1 Devereux, (N. C.) 3 ; Commercial Bank v. Eddy, 7 Met. 181; Commonwealth v. Kenny, 12 Met. 235.
H. Jewell, for the defendant, E. W. Woodman,
cited 3 • Stark. Ev. 1750, 1751; 1 Phillips Ev. 304; 1 Greenl. Ev. § 467, and authorities cited under second point; 1 Stark. Ev. 195, 198.
Bigelow, J.
This is an action of assumpsit, to recover the amount of a promissory note, dated October 26, 1848, signed “ I. F. Woodman & Company.” The plaintiffs claimed to recover against I. F. Woodman and E. W. Woodman, the two defendants, upon the ground that they were copartners in business, at the time the note was given, under the firm of I. F. Woodman & Co. No service was made on I. F. W., and the only question tried before the jury was, whether, at the time aforesaid, E. W. Woodman was a copartner, and so liable on the note. Various exceptions were taken to the rulings of the judge at the trial, all of which relate to the competency of evidence.
*2601. The plaintiffs sought to prove, that, in the summer of 1848, and until I. F. Woodman commenced business under the firm of I. F. Woodman & Co., his credit in the market was bad. This testimony was rejected by the judge, and we think rightly; because it had no tendency to prove the issue before the jury, and was entirely irrelevant. The credit of I. F. Woodman had no bearing on the question of the liability of E. W. Woodman as a copartner.
2. The judge also rightly rejected all the statements made by the witness, Thurston, to the plaintiffs, as to the connection of E. W. Woodman with I. F. Woodman; and all inquiries made by the plaintiffs of Thurston, as to the credit of said firm and the persons of whom it was composed ; and also all the statements made by I. F. Woodman to Thurston, and by him repeated to the plaintiffs; because no proper foundation was laid to render such evidence admissible as against E. W. Woodman. The authority of Thurston and of I. F. Woodman to bind E. W. Woodman by their statements and declarations, depended entirely upon the existence of the copart-nership. Until that was proved, E. W. Woodman was not shown to have had any connection with either of them ; and, as that was the very point in controversy before the jury, to be determined by their verdict, evidence which could be admissible only upon the assumption of the existence of the copartnership, was clearly incompetent, when offered to prove the fact upon which its competency depended. 1 Greenl. Ev. § 177; Collyer on Part. 454; Tuttle v. Cooper, 5 Pick. 414 Robbins v. Willard, 6 Pick. 464.
3. So, too, the question put by the plaintiffs to their witness, Thurston, upon his reexamination, in relation to a conversation between him and I. F. Woodman, was properly excluded; because it does not appear that any such conversation was inquired into by the defendants on cross-examination.
4. The next exception is founded on the refusal of the judge to admit in evidence a former judgment between the same parties, in which the plaintiffs recovered against the same defendants, as copartners, upon a promissory note *261signed I. F. Woodman & Co., bearing date December 2, 1848. We consider the rule -well settled in this commonwealth, that, to render a former judgment between the same parties admissible in evidence, in another action pending between them, it must appear that the fact sought to be proved by the record was actually passed upon by the jury, in finding their verdict in the former suit. It is not necessary that it should have been directly and specifically put in issue by the pleadings, but it is sufficient if it is shown that the question which was tried in the former action between the same parties is again to be tried and settled, in the suit in which the former judgment is offered in evidence. And parol evidence is admissible to show that the same fact was submitted to, and passed upon by the jury, in the former action; because, in many cases, the record is so general in its character, that it could not be known, without the aid of such proof, what the precise matter in controversy was, at the trial of the former action. Standish v. Parker, 2 Pick. 20; Parker v. Standish, 3 Pick. 288; Parker v. Thompson, 3 Pick.429; Spooner v. Davis, 7 Pick. 147 ; Eastman v. Cooper, 15 Pick. 276, 280. Applying these well-settled principles to the case at bar, it will be found that the judgment offered in evidence by the plaintiffs falls clearly within them, and ought not to have been excluded by the judge. The fact which the plaintiffs sought to prove was, that a copartnership existed between I. F. Woodman and E. W. Woodman, under the name of “ I. F. Woodman & Co.,” in December, 1848, at the time the noté in suit was given. This was the very fact in dispute between the parties at the trial. The judgment, which was offered in proof of this fact by the plaintiffs, was recovered by them against the same defendants, doing business under the same firm, as copartners, and upon a note of hand, which they offered to show was given at the same time with the note in suit. The fact of copartnership, in December, 1848, was the fact to be proved. It was essential to the finding of the former verdict, without proof of which it could not have been recovered. It is, therefore, admissible in evidence, though not conclusive, when the same question is again to be *262tried between the same parties. The principles laid down and illustrated in Eastman v. Cooper, ubi supra, are decisive of this point, and render further argument and authority unnecessary.
5. The remaining exception is founded on the rejection of a letter offered in evidence by the plaintiffs, written by Thurs-ton, the agent of I. F. Woodman & Co., to the defendant, E. W. Woodman. We think it very clear, that this letter would have been incompetent to affect E. W. Woodman, were it not for the conversation respecting it between him and Thurston, in Boston, which was proved by the plaintiffs. There is a marked distinction between acquiescence in the verbal statements of others, and the omission to answer letters written to a party by third persons. Commonwealth v. Eastman, 1 Cush. 189, 215. The former renders the statements admissible, while the latter does not make the letters competent evidence. But, upon a consideration of the subject-matter of this letter, the circumstances under which it was written, as stated to E. W. Woodman, the information which it conveyed to him, that his name and credit were being used in the firm of I. F. Woodman & Co., the direct application which it contains to him, to give a reply, together with the subsequent conversation with Thurston, in regard to the letter and its contents, accompanied by a refusal, on the part of the defendant, to admit or deny the fact of his copartnership with I. F. Woodman, we are of the opinion that it does not come within the rule excluding letters which a party has omitted to answer, and that it was competent evidence to be submitted to the jury, in connection with the other testimony relating to it. It falls within the rule which renders competent all admissions arising, or fairly to be inferred, from the acquiescence of a party. Exceptions sustained.