Hardy, Brown, Goss & Co. v. Cheeney

The opinion of the court was delivered by

The motion of the defendant to dismiss the suit, “ because of the variance, or non-joincler of the brothers of the defendant,” was properly overruled. The non-joinder of a co-contractor 'as defendant in assumpsit is no ground of objection for variance on trial of the merits. The defendant can avail himself of such objection only by plea in abatement. This principle is equally applicable to copartners as to other joint contractors. Had it appeared therefore in proof at the time the motion was made and overruled, that the sale of the goods was made to the defendant and his brothers as copartners, and that they were jointly liable in that capacity, the ruling of the county court would have been correct. But there was no evidence in the case tending to show that the brothers of the defendant were liable for the goods, or that they were even partners, of which the defendant could avail himself; unless what Baldwin, the plaintiff’s agent, who made the sale, testifies that the defendant told him, can be so regarded. But in an action against the defendant and his brothers, these declarations would not be legal evidence against the brothers of the defendant tending to show that they were partners with this defendant, or jointly liable for the purchase. *421Where two or more are sued together as partners, the declaration of one is not evidence against the others to prove the copartnership. But when the copartnership is proved by competent evidence, if the contract in question is within the scope of the copartnership, what is said by one partner in negotiating the trade, may be received to show whether the contract was made by him in behalf of the copartnership, or on his own account. The case states that one of the brothers of the defendant was present part of the time during the negotiation ; but it is stated that there was no evidence tending to show that he heard the defendant make any representation as to the Cheney Brothers being copartners. But in addition to this the defendant himself testified there never was any • such copartnership, and that he bought the goods solely on Ms own account. It also appears that it was not claimed on trial that the defendant in fact was a partner with cither of Ms brothers at the time of the purchase. The defendant’s motion therefore had no foundation in fact or law. It makes no difference that Baldwin understood that the defendant made the purchase in behalf of himself and brothers ; or whether the defendant so represented to him at the time of the trade.

The question litigated before the jury was whether the goods were sold on thirty days’ credit, or on a credit of sixty days. If on sixty days the action was premature. The jury have found specially that the sale was on a credit of thirty days only. The exception to the charge is abandoned. The defendant objected to that part of the testimony of Baldwin, and to that part of the testimony of Hardy, one of the plaintiffs, which relates to the authority of Baldwin as agent of the plaintiffs, and to its admission exception was taken. The exception is insisted on in argument only so far as it relates to the testimony of Iiardy. Baldwin was the traveling agent and salesman of the plaintiffs, • and made the sale as such agent, to the defendant. He had, among other things, testified that he sold the goods to the defendant on a credit of only thirty days ; that he told him his employers, the plaintiffs, never sold on a longer credit than .thirty days ; that he told the defendant he had no authority to give him more than thirty days’ credit, and that he did not agree to give, or agree that the plain*422tiffs would give any longer credit than thirty days. The defendant had testified, among other things, that the agreement between him and Baldwin was for a credit of sixty days. If it was Baldwin’s uniform habit and course of business in the plaintiffs’ employ, to sell for cash or on a credit not exceeding thirty days, and if he was at the time of the sale, and previously had been during all the time he had been thus employed, under peremptory instructions to sell for cash or on a credit not exceeding thirty days, it would be a circumstance calculated to inspire confidence in some measure in the recollection of the witness Baldwin, as to the terms of credit he gave in this particular instance. So far as Hardy testified to this uniform course of business, no objection was made. The exception is only to that part of the testimony to the effect that Baldwin was under peremptory instructions not to sell on a credit exceeding thirty days. But the fact that Baldwin was thus limited in Ms authority is a circumstance that the jury might properly consider as confirmatory or corroborative of the testimony of Baldwin in determining the question whether the stipulated credit was thirty or sixty days. The jury might consider that if Baldwin in this instance departed from Ms uniform course of business, and exceeded his authority as to the term of credit, he would be likely to remember it; and that he would be more likely to forget whether the credit given was thirty or sixty days, if both were within the limit of his authority and instructions. We think the jury were'more likely to come to a correct conclusion upon the point in dispute, with this evidence before them, than if they had been left in the dark as to Baldwin’s authority and instructions.

Tlie judgment of the county court is affirmed.