Cummins v. Coffin, 29 N.C. 196, 7 Ired. 196 (1847)

June 1847 · Supreme Court of North Carolina

29 N.C. 196, 7 Ired. 196

ENOS F. CUMMINS vs. A. G. COFFIN.

In an action against two, of three partners in a firm, the plaintiff may introduce the testimony of a third partner, not a party to the record, though ho could not bo compelled to give his testimony.

Tho evidence of a partner, in bohalf of those sued as part of the firm, is not competent for them, because, in a suit for contribution, he is not only hound for his part of the debt recovered, but also for his proportion of the costs accrued in the action.

'Tlie case of Majjitt v. Gaines, 1 Ired. 158, cited and approved.

Appeal from the Superior Court of Law of Guilford County, at the Spring Term, 1847, his Honor Judge Mania presiding.

The action is brought upon a note of hand, signed Coffin, Harvey and Co. The" plaintiff' proved, that the defendant was a partner of the firm, Coffin, Harvey and Co. and that the signature to the note, was that of William Coffin, another member of the firm. In order to prove the existence of the debt, and that it was contracted in the due course of parnership business, the plaintiff offered in evidence the deposition of Samuel Harvey ; another member of the firm. This testimony was objected to by the defendant’s counsel, but admitted by the Court, The defendant then oiFered in evidence the deposition of the partner, William Cofiin, and that of the said Samuel Harvey, taken at a time different from the former: both of these depositions were rejected by the Court. A verdict was returned for the plaintiff and a rule for a new trial being discharged, judgment was rendered for the plaintiff and the defendant appealed.

No counsel for the plaintiff,

Morehead, for the defendant.

Nash, J.

Wo are at a loss to perceive, upon what ground the objection to the deposition of Samuel I-Iarvey rests. The firm consists, as the ease states, of the two Coffins, William and A. G. and the witness Harvey. The latter, though not a party to the record, could not have been compelled to give evidence ; but if he chose to give it, it was certainly competent testimony on behalf of the plaintiff. The declarations of a partner, when the partnership is established aliunde, is clearly evidence against another partner, concerning a subject of joint interest, notwithstanding he is not a party of record. Wood v. Braddick, 1st Taunt. 104. So, also, after the dissolution of a partnership, the declaration of a partner, is evidence against his co-partners of transactions concerning the firm, and transacted while it existed, and also to repel the plea of the statute of limitations. McIntire & Co. v. Oliver, 2 Haw. 209. Smith v. Ludlow, 6 John. R. 267. if the declarations of Harvey could have been competent testimony in behalf of the plaintiff, much more so is his deposition. But though his testimony is admissible in behalf of the plaintiff, it does not follow that it is competent evidence for the defendant,, The general principle is, that a party to a negotiable instrument, when there are more than one, is a competent witness, either to support or defeat an action upon it, unless he be directly interested in the event. or unless the vcrdi-ct would be evidence for or against him. 2 Star, Ev. 179. When offered as a witness for the plaintiff, be is competent, because be testifies against his interest, for if the plaintiff succeed, the defendant may have an action against him for contribution, and if he fail, he stands still open to the plaintiff’s action. If offered by the defendant, he is incompetent, because he is liable to the defendant not only for contribution, but for a due portion of the costs of the first suit. York v. Blott, 5 Man and Sel. 71. 1st Ire. 188, Maffitt v. Gains. His Honor was correct in admitting the testimony of Harvey in behalf of the plaintiff. He was also correct in rejecting the depositions of William Coffin and Samuel Harvey, when offered by the defendant. Each of these individuals was a member of the firm of Coffin, Harvey and Co. Indeed, it consisted of those two and the defendant. The witnesses were bound to A. G. Coffin, the defendant, each for his share of the costs of the suit in which they were offered as witnesses, and, to that extent at least,, they were interested in the event.

Pjjr CuniAffi. Judgment affiuned,