Crook v. Taylor, 12 Ill. 353 (1851)

June 1851 · Illinois Supreme Court

12 Ill. 353

George A. Crook, Appellant v. George H. Taylor, Appellee.

APPEAL FROM PEORIA.

A partner who is not joined as a defendant, may be called as a witness by the plaintiff, to prove the cause of action against the partner sued.

This suit was brought by Taylor against Crook on three promissory notes payable to Taylor, and signed “George A. Crook, per George Spurck.” Crook pleaded the general issue and denied the execution of the notes under oath.

George Spurck, who had executed the notes for Crook, was called as a witness by the plaintiff, and being objected to as incompetent, was sworn touching his interest. He testified, that he signed the notes for Crook, and had. authority so to do. That at the time of signing the notes he was a partner of Crook, in buying and selling merchandise, and in part for town lots in Peoria. He was objected to as incompetent. Objection was overruled. Spurck was then sworn in chief, and testified in substance to the same facts as above stated.

The cause was heard before Kellogg, Judge, and a jury, at August term, 1850. Verdict and judgment for plaintiff in the Circuit Court. A motion for a new trial was made and overruled, and an appeal taken by Crook. Appellant assigned for error, the permitting of Spurck to be sworn as a witness in the case, -and the .denial of a motion for a new trial.

N. H. Purple, for Appellant.

H. O. Mérrimas-, for Appellee.

The witness, Spurck, signed the notes in suit, as by procuration ; and although a partner, he was a competent witness to testify for the plaintiff below, to prove the acts of the firm, whether he was competent to testify to the fact of partnership or not. Collier on Partnership, p. 457; 2 Phillip’s Ev., 108, and cases there cited.

The question of competency as a witness, for any purpose, here arises. Ho exception is taken to any of the evidence given in chief, consequently, if competent to prove the execution of the notes, the Court properly admitted his evidence.

The question of partnership is not in issue, as no plea of abatement is filed.

Spurck was a dormant partner, and pretended to act by procuration, and as to third persons he was an agent, and not necessarily made a party to the suit. 2 Phil. Ev., 128, and cases cited.

An agent is competent to prove his agency and acts,- from whatever source that agency is derived, from partnership or otherwise.

Treat, C. J.

This action was brought by Taylor against Crook, to recover the amount of three promissory notes, signed e‘ George A. Crook per George Spurck.” The defendant pleaded non est factum, verified by affidavit. The plaintiff, to prove the execution of the notes, offered Spurck as a witness, who being sworn touching his interest, stated, that the notes were signed by him in the name of Crook, and that he had authority so to do; that Crook and himself were partners in baying and selling merchandise and real estate, and the notes were given for merchandise and town lots; that the business of the partnership was transacted in the name of George A. Crook, and witness was in the habit of using the name of Crook in the same way, and Crook had recognized his acts. The defendant objected to the competency of the witness, but the Court overruled the objection, and permitted him to testify. That decision is now complained of.

It is well settled by the authorities, that a partner who is not joined as a defendant, may be called as a witness by the plaintiff, to prove the cause of action against the partner sued. Hudson v. Robinson, 4 Maule & Selwyn, 475; Blackett v. Weir, 5 Barnwall & Cresswell, 385; Hall v. Curyon, 9 ibid, 646; Brooks v. McKinney, 4 Scammon, 309. He is interested in defeating the action, for if it succeeds, the defendant may compel him to contribute. He has no interest in sustaining the action, for if it fads, and he is sued and made liable for the whole debt, he may enforce contribution from his partner. In any point of view, the witness was clearly competent.

The judgment is affirmed.

■Judgment affirmed.