#### Dallmeyer *v.*Dallmeyer.

In an action for money loaned to a partnership, brought against a surviving member, the evidence showed that the money was paid by check drawn by the plaintiff, who was the wife of the deceased member, to tire order of the firm, and that the check was taken by plaintiff’s husband to the office of the firm, and was subsequently cashed by the firm. There was evidence from which it might be inferred that the money was loaned to the husband and by him invested in the firm, but no single piece of testimony was conclusive on either side. *Held,*that it was proper to s.ubmit the case to the jury.

Where no exception is taken to the admission of evidence, the refusal of a subsequent motion to strike it out, is no cause for reversal, on error.

Oct. 25, 1888.

Error, No. 139 Oct. T., 1888, to C. P. No. 2, of Allegheny Co., to review a judgment on a verdict for plaintiff in an action of assumpsit by Margaret L. Dallmeyer against Plenty Dallmeyer, who survived Plenty Dallmeyer, Jr., late partners as H. Dallmeyer & Son, at January T. 1888, No. 77.

The affidavit of claim averred that the defendants, H. Dallmeyer & Son, were indebted to the plaintiff in the sum of $14,500, which she had loaned to the firm, and for which amount she had drawn two checks, one for $12,000, and another for $2500, both to the order of H. Dallmeyer & Son. Pleas, not given.

At the trial, before Ewing, P. J., the plaintiff introduced in evidence the two checks referred to in the affidavit of claim. [The plaintiff also offered in evidence, without objection, a paper in the German language, marked Exhibit 3, and a translation thereof, as follows:

“I borrowed in 1886, of Mrs. Dallmeyer, for the firm of Pfenry Dallmeyer & Son, fourteen thousand five hundred dollars. [Signed.] Henry Dallmeyer, Sept. 1887.”

Mrs. Dallmeyer testified that she found this paper the week after the death of Plenry Dallmeyer, Jr., in the watch-pocket of the pantaloons he was wearing all last summer.

The defendant then moved the court to strike out Exhibit No. 3, and the translation thereof, for the reason that the testimony of Mrs. Dallmeyer clearly showed that it was incompetent. The court declined to strike out the evidence. Exception.] [1]

Further facts appear in the charge of the court below, which was as follows:

“ It is proven and admitted that Denry Dallmeyer, Sr., and Henry Dallmeyer, Jr., were partners engaged in the business of dealing in tobacco; that they had been partners for some years prior to these transactions, and that Henry Dallmeyer, Jr., died September 26, 1887. It is also proven, and not in dispute, that the plaintiff, Mrs. Dallmeyer, was one of the residuary legatees of Thomas Donnelly, deceased, who died in 1885, leaving Henry Dallmeyer, Jr., as his executor. He settled up the estate, and, it is shown, by testimony, and admitted, that, in June, 1886, Mrs. Dallmeyer received from the estate of Thomas Donnelly nearly $45,000 on account of her share of that estate, and that it was deposited to *156her credit in the Fourth National Bank of Pittsburgh. It also appears that, on June 21, 1886, she drew a check on the Fourth National Bank for $12,000, payable to the order of Henry Dallmeyer & Son; that that check was taken, by Henry Dallmeyer, Jr., to the office of the firm and that it was there endorsed by the book-keeper of the firm in the presence and with the knowledge and consent of both partners, and was then deposited .to their credit in the Third National Bank, where the firm kept its account; that the money was paid upon that check and went into the firm account.

“The ordinary presumption arising from that — if there was’ nothing more in the case — the ordinary presumption arising from the payment of money by one person to another, whether it be paid in coin, bank notes, or by check of the party paying it, is that it is simply the payment of a debt. It does not raise, of itself, a presumption of a loan. If one of the jurors should give to another a hundred dollars, and there was nothing else in evidence, the presumption would be that it would be simply the payment of a preexisting debt; but if you go further, and show that there was no debt pre-existing, and that the money was given in that way, the presumption then would be that of a loan. Where there is the relation of husband and wife, however, as there was in this case, a different presumption arises from what there would be as between strangers. Where a wife gives money to a husband, or a husband to a wife, and there is nothing to explain the transaction, the presumptions are that it is a gift. The surrounding circumstances may change the presumption, and it may not require a very great amount of outside circumstances to change it, and it is for the jury to say whether that presumption was changed in this case.

“ If that check had been drawn to the order of Henry Dallmeyer, Jr., alone, or Henry Dallmeyer, Jr., had been given the money by his wife, and there was no explanation of the transaction, even though he did afterwards give it to the firm, the presumptions would still be that it was a gift to her husband, or at least that there was some arrangement of that kind. It seems to me, however, that the form of the check is a very important circumstance in this case. It was not drawn to the order of the husband, but to the order of the firm of which he was a partner, and the presumption would be that it was for the firm and not for the husband — not a conclusive presumption at all, but the natural inference would be that it was intended for the parties to whose order the check was payable. We admitted testimony, as throwing some light on this transaction, that, at the time this check was brought to the office of the firm, both partners being present, Mr. Brown, the book keeper, who was also present, was directed to credit the check to Henry Dallmeyer, Jr., and the books show that it was so credited. The book-keeper says it was credited as giving the son a third interest in the assets of the firm; that, before that time, he had only a third interest in the profits, and the books show this amount credited to Henry Dall*157meyer, Jr. (I believe they do not show any “stock account,” as such, of the partners.) This would be reconcilable either with the theory of a loan by Henry Dallmeyer, Jr., to the firm, or that it was— what the book-keeper says it was — a purchase of a third interest in the assets of the firm. It seems to me that, while this is evidence throwing some light on the transaction, yet if this was a loan made by Mrs. Dallmeyer to the firm through her husband, the fact that he had it placed to his credit on the books of the firm would not be a conclusive defense to her claim for it. The court admitted it simply as throwing some light on the question as to why this check was given. One especial reason why it would not be conclusive is this: If the original transaction between the wife and the husband was intended as a loan, the very face of the check, it appears to me, would be sufficient to put Henry Dallmeyer, Sr., on his guard, and upon inquiry as to what it was intended for.

“ In addition to that, the plaintiff put upon the witness-stand W. C. Dallmeyer, a son of the defendant, who testified as to conversations had with his father, one in the spring of 1886, before this money was obtained, and another sometime in the fall of 1886, after it was obtained, in which the father told the son that when Mrs. Dallmeyer got her money from the Donnelly estate the firm would get some money from her; that they wanted to extend their business, etc., and that then in the fall the father said they had received the money; that there had been a division of the estate, and that Henry had borrowed it from Mrs. Dallmeyer, or words to that effect. Counsel on both sides have commented upon that testimony. What the father said is not absolutely inconsistent with the theory on either side, and it is for you to say what it did mean.

“ You cannot, in this case, take any single piece of testimony as conclusive on either side. There are inferences which may be drawn either way, and the particular parts are to be taken in connection with all the other testimony. There is a paper which has been given in evidence, the body of which is written in the German language, with the signature, ‘ Henry Dallmeyer ’ in English. The plaintiff gave evidence, by two witnesses, that that signature was the genuine signature of Henry Dallmeyer, Jr.; they say they know his writing well and that they have no doubt of this being his writing, with evidence also that he understood the German language — both to speak and read it. Mrs. Dallmeyer, the plaintiff, says she found that paper in a watch-pocket of the pantaloons of her deceased husband, a week or more after his death; that is all she knows about it. On the other hand, the defendants have called witnesses who doubt the genuineness of that signature. The paper is not entitled to the weight it would have had, it seems to me, if it had been delivered to the wife before the death of the husband. It is for the jury to say, first, whether or not it is a paper written by Henry Dallmeyer, Jr., and, as such, his declaration, and then as to what weight you will give it. The paper was never delivered to *158anybody, or, so far as it appears, shown to anybody. If written by Henry Dallmeyer, Jr., it may have been written for some private purpose which we do not know, but you have the translation of it, and it is an admission or assertion on his part, at that late day, that he had borrowed this money for the firm. Possibly the language might be construed that he had borrowed -it to put it in the firm, but the more obvious meaning would seem to be that he had borrowed it to make a loan on account of the firm, though it is not entirely inconsistent with the theory that he had borrowed it to put it in the firm himself.

“ I have neglected to say anything about the twenty-five hundred dollar check; it seems to have been given to and went into the firm of Henry Dallmeyer & Son in 1886, standing apparently on the same footing that the other check did. The book-keeper says he endorsed the check and had it deposited to the credit of Henry Dallmeyer & Son, and put it on the books to the credit of Henry Dallmeyer, Jr., but says he has no recollection of there having been anything said when that particular check was given, but that it went the same way the other one did.

“ The theory of the defense is that this was a transaction between the wife and the husband alone, and that the money was repaid, in this way: It appears, from the testimony, that Henry Dallmeyer, Jr., was entitled to a very considerable amount of commissions on the settlement of the Donnelly estate, which amount was finally fixed by the orphans’ court, in the summer of 1887, at some $27,000. The defense also put upon the witness stand W. C. Dallmeyer, who testified that, in a conversation with the plaintiff in December, 1887, which was after this suit was brought, and in*connection with talk about the suit, she said to him that if she failed in this suit the estate of Henry Dallmeyer, Jr., would be insolvent, and that he asked her about the portion of the commissions that she had received, and that she admitted having received $25,000 from her husband, which amount had gone into the purchase of the ‘ English Block.’ Mrs. Dallmeyer, on the witness stand, says she had the conversation with W. C. Dallmeyer about the suit, and did tell him the estate would be insolvent if she lost this suit, but that, to the best of her recollection, she said nothing about this $25,000; that she did not admit that. Defendant’s counsel then asked her, as they hada right to ask, if she had received $25,000 of the commissions from her husband, and she said, substantially, that she had, but further said that it had no connection with the money represented by the checks in suit, or with the business of these checks.

“ Now, the presumption arising from the payment of money by one party to another, as I have said, is that it was in payment of a debt, if there is nothing to explain it, and if the jury are satisfied that Mi'. Dallmeyer, owing his wife the $14,500, paid her that amount, or $10,000 or $20,000 — that this was a payment of the’ money he owed her — you will so find; but, as I have said, it is not *159a conclusive presumption. You must look at all the other things. Mrs. Dallmeyer says absolutely that this had nothing to do with the $14,500.”

The defendant presented, inter alia, the following point:

“ 2. Under all the evidence, the verdict must be for the defendant. *Ans.*Refused.”

Verdict and judgment for plaintiff for $15,036.50.

*The assignments of error*specified, 1, the ruling on the evidence, quoting the bill of exception, as above; and, 2, the answer to defendant’s point, quoting the point and answer.

*J. S. Ferguson,*with him *W. C. Erskine,*for plaintiff in error.—

All the evidence offered by the plaintiff was equally open to the inference that she had or had not made the loan to the firm. Her checks were not in themselves evidence of a loan to anyone. Fleming *v.*McClain, 13 Pa. 177; Masser *v.*Bowen, 29 Pa. 128. Even the paper of Sept., 1887, is admitted by the court below not to be inconsistent with our defence.

“ For the prevéntion of fraud, clear and satisfactory proof of a wife’s claim against her husband is exacted in a degree not required of others.” Lahr’s Ap., 90 Pa. 507.

The paper signed by Plenry Dallmeyer, Jr., should not have been admitted in evidence. The admissions of a partner, after the dissolution of a firm, bind no one but himself, unless he is the agent of the firm in w'inding up its concerns. Hogg *v.*Orgill, 34 Pa. 344; Tassey *v.*Church, 4 W. & S. 141; Coleman *v.*Forbes, 22 Pa. 157. This paper is his declaration, speaking'after his death, which was the dissolution of the firm.

During the lifetime of her husband, she could not have sued the firm. Until the breath was out of his body, the paper had no legal value, even if he had delivered it to her in his lifetime. If he had spoken to her the same words written out in this paper, she could, neither in his lifetime nor after his death, have testified to them. The principles upon which the declarations of a partner are admissible in evidence, have no relations to such a case as this.

*jD. T. Watson,*for defendant in error.

The plaintiff's in'error do not question that the money, which it is admitted the firm of H. Dallmeyer & Son received, was Mrs. Dallmeyer’s money, derived from her separate estate, under the will of Thomas Donnelly, and that it was not derived from her husband. Besides, this case is not a contest between the creditors of Henry Dallmeyer, Jr., and his widow. It is between the firm of H, Dallmeyer & Son and Mrs. Dallmeyer. For both these reasons, the language cited from Lahr’s Ap., 90 Pa. 507, is inapplicable; that was a contest with creditors.

We proved that Mrs. Dallmeyer was not in any way indebted to the firm when the checks were given, and hence the logical pre*160sumption in this case was that the checks were a loan of money. Huntzinger *v.*Jones, 60 Pa. 171; 2 Daniel Negotiable Instruments, § 1646.

Nov. 5, 1888.

That Mrs. Dallmeyer’s husband was one of the firm, would not effect this; the presumption would still be of a loan and not of a gift. Young’s Est, 65 Pa. 101; Graybill *v.*Moyer, 45 Pa. 530.

The paper of September, 1887, was a plain, unequivocal declaration that this money was a loan to the firm, and that he acted in procuring it for the firm. He was a partner in the firm when the declaration was made. It was a declaration against his interest. It negatived any idea of a gift, and said it was a loan to the firm from Mrs. Dallmeyer.

If Plenry Dallmeyer, Jr., had orally said this to some third person, its admissibility would be clear. Because, however, the statement is in writing, and found in his.clothes after his death, it is said to be inadmissible. But why? It was his declaration while he was a member of the firm — not after the firm was -dissolved. That it is used after his death dissolves the firm, is nothing. This is often so of both written and oral declarations.

But error cannot be assigned to the refusal of the court below to strike out evidence. The onlj'- way in which this can be brought .on the record for error is by a point asking the court so to charge, and a refusal of that point. Yeager *v.*Weaver, 64 Pa. 427; Oswald *v.*Kennedy, 48 Pa. 9; Robinson *v.*Snyder, 25 Pa. 203.

Per Curiam,

The first assignment of error cannot be sustained. No exception was taken to the evidence complained of when it was admitted, and the motion to strike out was properly disregarded. Oswald *v.*Kennedy, 48 Pa. 9.

The second assignment is answered by saying that it would have been a grave error not to have submitted the case to the jury.

The judgment is affirmed.