Walton v. Tomlin, 23 N.C. 593, 1 Ired. 593 (1841)

June 1841 · Supreme Court of North Carolina

23 N.C. 593, 1 Ired. 593

JAMES W. Y. WALTON vs. JOHN TOMLIN, WILLIAM P. WAUGH & JAMES HARPER.

In an action on a contract, a defendant cannot be admitted as a witness ' for his co-defendants, even after he has suffered j udgment by default to be taken against himself.

When a copartnership is dissolved, notice of the dissolution should be given to those, who were in the habit of dealing with the firm, and to others, either by advertisement in a public gazette or otherwise.

This was an appeal from the judgment of the Superior Court of Law of Ashe County at Spring Term, 1841, his Honor Judge Manly presiding. The case appeared, to be this: It was an action of debt, upon a promissory note, dated the 21st of Nov., 1835, signed “John Tomlin & Co.” It was proved that a commercial copartnership, under this name and style, between John Tomlin, William P. Waugh and James Harper, existed in Ashe County for some years; and was transacting business as late as the summer of 1835. At what time it was dissolved did not distinctly appear. A witness stated that his impression was that a dissolution took place in the month of September, 1835. It was also proved that John Tomlin was the active partner in the said concern — that he made all the purchases and attended to the sales — and that the signature “John Tomlin & Co.” was in his handwriting. It did not appear that any notice of the dissolution was ever given in any gazette or otherwise. A witness also proved that the plaintiffs had enquired of him, previous to -the making of the note, whether .Waugh and Harper were members of the firm of “John Tbmlin &, Co.,’’ to which he answered they were understood to be; and further proved that he, the witness, had been repeatedly ' enquired before, and once since, the date of the note, by theplaintiffs, as to the standing of the members of the said firm. The defendants exhibited in evidence articles of co-partnership between John Tomlin and John Hardin. It did not appear that this firm ever transacted any business, nor was it known to exist in the neighborhood, which the articles pointed out for its location. The goods, for which the note sued upon was given, were packed in Charleston, directed to John Tomlin & Co. and conveyed into Ashe County.

When the jury were called and about to be empaimeled} the counsel for the defendants offered that John Tomlin should confess a judgment in the action, lor the full amount of the principal, interest and costs. This the court refused to allow. In the progress of the trial, the defendant Tomlin was offered as a witness by the other defendants to prove, that he told the plaintiffs, at the time of giving the note, that the old firm of John “Tomlin & Co ” was dissolved, and that a new one of the same name and style, but composed of John Tomlin and John Hardin, had been formed. The court deemed the witness incompetent and he was excluded. The presiding Judge instructed the jury, that the law implied a power in any member of a firm, associated generally for transacting mercantile business, to sign notes in the. name of the asssociation for the purchase of goods, and if the jury found, upon a consideration of the facts, that the defendants were thus associated at the time of the execution of the note, that the plaintiffs knew the firm so formed and none other of the same name, and gave the credit to the defendants; then they should find a verdict for the plaintiffs. If there had been a dissolution of the firm, and Waugh and Harper had withdrawn from it, at the time of the execution of the note; then it was the duty of the defendants to give notice to such as were in the habit of dealing with their firm that they had withdrawn, and to all others by advertisement in some gazette or otherwise. And that if the necessary notice had not been given, and the jury should find further that the plaintiffs had no knowledge of the fact in any way, but trusted the defendants, they would still be liable and the jury should so find. Rut if they found that the necessary notice had been given, or if the plaintiff had edge of the dissolution at the execution of the note, they would find for the defendant. Or if the jury believed that the plaintiff, when he took the note, had knowledge of the firm, composed of Tomlin and Hardin, and trusted that concern, or, having such knowledge, took without enquiry the note of that concern, they should find for the defendants. The counsel for the defendants asked the judge to instruct the jury, that, if they believed that Tomlin intended to give the note of the firm, composed of Tomlin and Harden, they should find for the defendants; which the judge refused. The counsel further objected that the plaintiff had misconceived his action; that it should have been assumpsit for the goods, and on that account he could not recover; and asked his Honor so to charge, which was also refused. There being a verdict and judgment for the plaintiff,, the defendant appealed.

No counsel for the plaintiff in this court.

Boyden for the defendants,

contended that Towlin was a competent witness for the other defendants, and cited 3 Stark. Ev. part 4, 106 and 166; Ward v. Hayden, 2 Esp. Ca. 552; 2 Camp. 334, and that Tomlin wás not interested in behalf of the defendants, as it was his interest to make them equally liable with himself,

Gaston, J.

It is an undoubted general rule of evidence, that a party to the record is not to be permitted to give evidence in the case. So far as exceptions to this rule have been established, they must be followed; but it is dangerous to introduce new exceptions, because of their evident tendency to break down the rule itself. We find no such exception established as that here contended for by the defendants. There are Nisi Prius cases, in which a defendant in an action of tort, who has suffered judgment to go by default, has been admitted a witness for the other defendants to prove them not guilty. Ward v. Hayden, 2 Esp. Cas. 552. Case before Baron Wood, cited 2 Camp, (note) 333. Whether these have established the exception in cases of tort, is a question, which will be worthy of consideration, when the determination of ^ kecomes necessary. But no case has yet held, that, in an action upon an alleged contract, a defendant, who has suffered a default, is an admissible witness for the defendants, who deny the contract. Independently of the general rule that excludes such a witness as a party on the record, there seems to us a ground of interest, on which he ought to be excluded. Though offered for the purpose of disproving the liability of the other defendants, and though with us there may be a judgment against one and for others of alleged joint contractors, yet, when sworn, he is received to testify to the whole matter embraced in the issue. Under the general issue of non assumpsit or nil debet, it may be shewn, that the debt or demand has been released, or paid, either in whole or in part. The witness has an interest in establishing such a defence, for, although he has entered no plea, he must have the benefit of a verdict, diminishing the amount of the debt or demand claimed as a joint debt or demand of all the defendants.

The application made to the court, when the jury was about to be empannelled, to permit the defendant, who had not pleaded, to confess a judgment, was addressed to its sound discretion, and we have not the authority to supervise the exercise of that discretion. No objection has been taken to the instructions of the Judge, and no error is seen in them. The judgment must therefore be affirmed.

Per Curiam, Judgment affirmed.