This case is brought here by a writ of error from the Circuit Court for the district of Indiana.
It is an action of assumpsit on four promissory notes signed by Thomas B. Teller & Co. A verdict was rendered, and a judgment entered, for $2,719.40.
Certain rulings of the court on questions of evidence which were made during the trial, and to which exceptions were taken, present the points for consideration.
Evidence was given to prove the partnership of Swinney with Teller, which was denied, and which was the only controverted fact in the case. Thomas P. Anderson, a witness, stated that in April, 1852, he introduced Swinney to divers merchants in the city of New York, including the plaintiffs, as a person wishing to buy goods for Fort Wayne, as the father-in-law of Teller, and the capitalist of the concern, which was not denied by Swinney. Several other witnesses gave evidence conducing to prove that Swinney was a partner of Teller, and had by his declarations and conduct at Fort Wayne on divers occasions, in 1852 and 1853, held himself out to the world as a partner of Teller, who was then doing business as a merchant, and that Swinney had suffered Teller to hold him out as such.
It was further proved, by the book-keeper of the plaintiffs, that Swinney was in New York in June, 1854, a period prior to the extension of the notes sued on, and in conversation with Patten and Lane, the plaintiffs, he admitted that he was a partner of Teller & Co., in the house at Fort Wayne. About the same time, two of the daughters of Swinney testified that their father stated, at the Astor House, in New York, to Patten, one of the plaintiffs, that he was not a partner of Teller.
The defendants then offered several depositions, conducing to prove that Swinney, on his way to New York, with Solomon D. Bayless, to purchase goods, & c., and to whom he said that he was not to be a partner with Teller, who was his son-in-law, that he intended to purchase a small stock to start him in business, but that he had no further interest or connection in the matter. The same statement was made by Swinney to several persons in New York. Witness introduced him to a number of merchants in that city, and to those persons he did not represent him as the partner of Teller. This was before Thomas P. Anderson arrived at the city. At none of these conversations does it appear that plaintiffs were present, or either of them. Other depositions were offered to prove that on the trial of one Michael Dougherty for larceny, at Fort Wayne, in January, 1853, Swinney and Teller were both witnesses, in the absence of the plaintiffs, and both swore that Swinney was not a partner of Teller's. But the court, on objection being made, overruled the depositions, which showed the declarations of Swinney made to different individuals at different times, in the absence of the plaintiffs, and also the oaths made by Swinney and Teller in the criminal case stated, as incompetent, but the evidence of the two daughters of Swinney was not overruled.
After the evidence was given, and the argument of counsel closed, the defendant's counsel requested the court to charge the jury, if they believed from the evidence that in June, 1854, Swinney told Patten, in New York, that he was not, and never had been, a partner of Teller, the plaintiffs could not afterwards deal with him so as to bind Swinney, unless proof were made of a new authority given to him. But the court refused to give the instruction prayed for, and said, if the jury were satisfied, from the evidence, that Swinney was actually a partner with Teller in the establishment at Fort Wayne, his declarations to the contrary to Patten, in New York, could not relieve him from liability in this action.
An exception was taken to the instruction refused and to that which was given.