Joshua Lazarus & Co. v. Long, 25 N.C. 39, 3 Ired. 39 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 39, 3 Ired. 39

JOSHUA LAZARUS AND COMPANY, vs ELISHA T. LONG.

When the vendor of goods, at the time of the sale, professes to sell them to the vendee in his individual character, he cannot, in an action against a firm, of which the vendee was a member, give in evidence the decimations or admissions of such vendee, that the goods were purchased for the benefit of the firm. *

December 1842.

Appeal from the Superior Court of Law of Richmond County, at Fall Term, 1842, his Honor Judge Dick presiding.

The action was assumpsit, brought to recover the amount of a book account for goods sold to one Commodore Long, between the 6th of June and the 2nd of December, in the year 1837. The plaintiff proved the sale and delivery of the goods to Commodore Long. The-plaintiffs alleged that the defendant was a copartner of C. Long, at the time the goods were purchased. To prove this, he first examined one James H. Cole, who stated that he heard the defendant say, that he was interested in the profit and loss of a store, that C. Long was then keeping in Anson County, and that this conversation was in the year 1836. James L. Terry slated, that he was a constable in the year 1837 — that Commodore Long had placed notes and accounts in his hands for collection. In the fall of 1837, Elisha T. Long, (the defendant.) requested him to use diligence in collecting the said notes and accounts, for he was interested in them. The plaintiffs then offered in evidence a bond, under seal, payable to them, for the amount for which the goods were sold, signed, E. &, C. Long, dated, 10th April, 1838, and proved that the signature was in the hand-writing of Commodore Long. This evidence was objected to by the defendant, because there was no evidence of a copartnership between the defendant and Commodore Long, on the 10th of April, 1838, when the bond was executed nor was there anv evidence for what the said bond was given. The plaintiffs contended that the said bond was evidence to prove that the goods charged in the account, on ■ which this suit was brought, went to the partnership concern oí E. & C. Long, and although there was no evidence of the existence of the copartnership on the 10th of April, 1838, yet there was evidence to shew that a copartnership existed in the fall of 1837, and it was to be presumed, that it continued until April, 1838, unless the defendant proved the contrary. The court rejected the evidence; whereupon, the plaintiffs submitted to a nonsuit, and appealed to the Supreme Court.

Ashe for the plaintiffs.

Strange for the defendant.

Daniel, J.

On the trial of this cause, the plaintiffs’ counsel had first examined two'witnesses, (Coles and Terry) to prove that a copartnership existed between the defendant and C. Long. Conceiving that he had, by these two witnesses, established the existence of the partnership, at the date of the sate of the goods by the plaintiff to C. Long, he, then, secondly- offered in evidence the bond, which was for the same sum as now claimed by the account, as an admission of C. Long, one of the partuers, tending to shew, that the goods mentioned in the account- were purchased for the benefit of the firm-of C. & E. Long. This evidence the court rejected, and the plaintiffs were nonsuited. After the existence of a partnership has been established, aliunde, then the acts, admissions, or declarations of one partner, in matters relating to the affairs of the partnership, will be evidence against the firm. Collyer on Partnership, 454,455. 17 Mass. R. 227. But here, the goods were not taken up in the name of the firm, but the plaintiffs had delivered them to C. hong, and had in- their books charged the same to him only. Therefore, the hinge, upon which the question turned, was, whether the goods in fact were purchased for C. Long, individually, or for the benefit of the firm. C. Long was liable to tile plaintiffs at all events, for the entire demand. If his subsequent admissions were to be received in evidence against the defendant in such a case as this, he then have it in his power to discharge himself of one half of the debt, to which he is undoubtedly liable, and throw it on the shoulders of the defendant. It seems, that he was at the time,interested in making the admission or declaration, and that the court acted right in rejecting it as evidence. Purviance v Dayden, 3 Rawle, 402. Willis v Hill, 2 Dev. & B. 231. It is not intended by us to impugn the rule, that every partner is the agent of the rest of the partnership. And as Lord Tenterden said, (2 Barn. & Ald.) that the act and assurance of one partner, made with reference to the business transacted by the firm, will bind all the partners. Vide, also, Collyer, 212. But when the vendor of goods,- at the time of the sale, professes to sell them to the vendee in his individual character, then,'we think, that in an action for the price against the firm, or any other of the partners,- the admission's of such a vendee would not be good evidence against the defendants, that the goods were purchased for the benefit of the firm.

Per Curiam. Judgment affirmed.