#### Abraham Mitchell *versus*John Roulstone and Moses P. Stickney.

Where two or more, are charged^as partners, articles of agreement, between them, are admissible in evidence, (although not conclusive,) for the purpose of showing what the true nature of the connexion between the parties was, at the timelt commenced ; but their declarations made at a *subsequent*period, would not be admissible.

If evidence, competent at the time it is offered, be objected to, and the objection overruled, become incompetent by subsequent proof, the objection must be renewed, or the party mating it will be deemed to have waived his right of excepting.

*A joint*assumpsit, against two defendants, cannot be supported without evidence, expressed or implied, that *both*have assented to the contract. If one of the defendants is liable to the plaintifij and the other *admits*a joint liability with him, such admission, (although conclusive as to the party mating it,) is not sufficient to charge upon the first defendant a *joint*liability with the second. To permit the confessions of the latter to implicate the former, might be to make a contract for him, to which he never assented, and its practical effect might deprive Mm of an important witness. ,

Assumpsit to recover of the defendants certain sums of money alleged to have been loaned to them, *as partners.*Plea, the general issue. At the trial, the plaintiff proved satisfactorily, that he had loaned to the defendant, *Stickney,*the sum of 520 dollars, at two different periods; and that Stickney promised to repay the money, thus borrowed, as soon as Roulstone, (who was absent at the time,) should return to town.

It appeared by the evidence, on the part of the plaintiff, that Stickney kept a jeweller’s shop, in the Bowery, over which was a . sign, having his name thereon, as “ *agent."*That he was the son-in-law of Roulstone, (who kept a riding school,) had *represented himself*to be a partner with him, and that the money borrowed , of the plaintiff, was appropriated by Stickney, for the benefit of the concern managed by him, and that Stickney was insolvent. *352^ not appear, that Roulstone had any knowledge of the representations made by Stickney, as to the partnership, or that he had given countenance to any such pretension. The plaintiff introduced some evidence, to prove a general understanding in the mercantile community, that the defendants were partners ; *and*upon this testimony rested his cause.

The defendants for the purpose of defeating the action, at least, in its present form, introduced an instrument under seal, bearing date the 4th day of June, 1828, executed by the plaintiff and a number of others, the creditors of the defendants, wherein they had covenanted *with Roulstone,*that if he would pay them fifty per cent, of the amount of the claims set opposite to their respective names, *out. of the proceeds of'the jewelry, which had been in the possession of Stickney,*or from any other source ; and would divide the proceeds of said jewelry, in case it should amount to *more*than 50 per cent., upon said claims, among said creditors, they, *(the*said creditors,) would release and discharge him from the various sums specified, “ *and from all debts contracted by one Moses P. Stickney, as agent for lhe said John*Roulstone.”

The defendants also introduced, in evidence, a certain agreement, under seal, executed by one Andrew B. Stimpson of the first part, John Roulstone of the second part, and Moses P. Stickney of the third part, bearing date the 9th day of August, 1826. This agreement set forth, in substance, that Stickney had been engagedin the business of buying and selling jewelry for Stimpson,. as his *agent,*receiving a salary for his services, and accounting for the profits of the business; Stimpson furnishing the necessary capital, and making a ^proper allowance for expenses; *Sic.*That Stimpson had agreed to sell, and had sold to Roulstone, all his interest in said business, for a sum specified; that Roulstone constituted Stickney *his agent,*for the purpose of buying and selling jewelry on his account, and agreed to pay him a salary of 1000 dollars per annum for his services, Stickney covenanting on his part, to use his best exertions to conduct the business prosperously for Roulstone, and account to him for all sales, disbursements, &c.

The counsel for the plaintiff objected to these covenants, as evidence at the time they were offered, but their objection was over*353ruled by the Chief Justice, (before whom the cause was tried,) and the instruments were laid before the jury.

The defendant then introduced several witnesses to prove, that it- was generally understood among those who had dealings with Stickney, that he was but an agent for Roulstone, and that they were not considered to be partners.

Charles Walker, Esq., being also called by the defendants, as a witness, testified that he was the counsel for Roulstone, at the meeting of the creditors, when the aforesaid agreement and release between them and Roulstone was executed; but he refused to disclose what took place at that meeting, as it was called for tire purpose of a *compromise,*and under a *pledge, that no part of the transaction should ever be used by one party against the other, as evidence.*

Upon this state of facts, the Chief Justice charged the jury, that as the loans from the plaintiff to Stickney were fully proved, and as it also appeared, that the money borrowed had been used for the benefit of Roulstone, by a person fully authorized to obtain it, *his*liability to the plaintiff for the amount of the loans, was fully established; but that the liability of the defendants,fin the present action, depended upon the question, whether Stickney was a partner with Roulstone, or his agent merely. That the admissions of *Stickney,*that he was a partner, though proved, were not sufficient to charge Roulstone, jointly with him, unless the jury were satisfied, that the latter had made the same admissions also. That the evidence, as to the general reputation of a partnership being contradictory, they were to weigh, and decide upon it. That "the articles of agreement, between Stimpson and the defendants, furnished evidence to show the real nature ofStickney’s powers, and to prove, also, that he was an agent merely, and not a partner. That this evidence would be conclusive, if the agreement represented the facts truly, at the time of its execution, unless the defendants had, by their *subsequent*acts and admissions, held themselves out to the world as partners, or induced the plaintiff to trust them as such. That the agreement and release, executed by the plaintiff, (if admissible as evidence,) contained an on his that the relation between the de *354fendants, was that of principal and agent, and not that of partners, although he might, at a previous period, have supposed them to be partners. This admission, therefore, was not conclusive, as to the circumstances under which the debt was contracted, but might merely refer to a state of facts, ascertained afterwards, which would not protect the defendants, if they had both held themselves out as partners, or induced the plaintiff' to give them credit as such. If the jury believed thedefendants to be partners in fact, or if they had both held themselves out as such, or if Stickney had made such representations, with the knowledge and assent of Roulstone, then they were charged to find a verdict for the plaintiff". But if they believed' Stickney to be the mere agent of Roulstone, and the latter had not committed himself, as a partner, either by his acts or admissions, then they were to find for the defendants.

The jury returned a verdict in favor of the defendants, and *Mr. J.*Anthon, for the plaintiff,

now moved for a new trial. He contended, I. That the articles of agreement, between Stimpson and the defendants, should not have been received in evidence, being res *intercilios.*

II. That the Judge ought to have charged the jury, that the conditional release executed by the plaintiff) having been made upon mutual concessions, by way of compromise, was not admissible, as evidence, for any purpose. [1. *Phil. Ev.*83.]

III. As Roulstone was liable to pay the plaintiff’s demand, (a point conceded at the trial,) Stickncy’s *admission*of his own liability would make him responsible also, and thus established a joint liability against both. [1. *Esp. N. P. R.*29. 4 *Stark, Ev.*1071. 10 *J. R.*66. *Whitney v. Ferris.]*

*Mr. George Sullivan, contra,*for the defendants, contended,

that the agreement was admissible, to show the nature of the contract between the defendants, at the time it took effect, and for this purpose only was it offered. That the release was clearly admissible, at the time it was offered, as it contained an important admission made by the plaintiff. If it became liable to any objection *355afterwards, it was occasioned by the facts disclosed by Walker. No exception was taken at the time the objection presented itself, and the plaintiff is too late to take it now. If the representation made by Stickney is conclusive against Roulstone, then any witness, whose testimony is vitally important to the defendant, may escape testifying for him, by admitting a liability, or interest in himself. In this case, Stickney is an important witness, to show the true character of the loans in question, and the action is brought against both, for the express purpose of shutting out his evidence. [8. *Price's R.*122. 4. *Stark's Ev.*38.]

Oakley J.

This is a motion for a new trial, by the plaintiff, on a case made. The first objection raised, is to the admission, in evidence, of a certain article of agreement, between the defendants and one Stimpson, dated the 9th of August, 1826. The action was brought to charge-the defendants, as partners, and the agreement in question, was offered, to show what in fact was the nature of the connexion, in business, between them. For this " purpose it was competent, though by no means conclusive evidence. The declarations of the defendants, at a period subsequent to the commencement of their business, could not be admitted; but the agreement, in pursuance of which the business itself was commenced, has always been received as competent.

The defendants also offered in evidence, an instrument in - writing, signed by the plaintiff, dated on the 4th of June, 1828, in which the defendant, *Stickney,*was stated to be the agent of *Roulstone.*This was objected to by the plaintiff, but admitted by the Judge. No ground for this objection appears, by the case, to have been stated at the time it was made, and the paper, on its face, was clearly competent evidence. It contained an acknowledgment, that *Stickney*was merely the agent, and, of course, not the partner of Roulstone, and being signed by the plaintiff, was manifestly admissible, as his act. The objection to its admission, was, therefore, properly overruled. In a subsequent stage of the trial, it was proved, that this paper was signed by the plaintiff and others, creditors of Roulstone, upon an attempted settlement of their demands, and under an understanding, that no admissions, *356or statements, made by either party on that occasion, should be given in evidence. It does not appear, however, that when the - . , . . , . . proof was given, or at any subsequent period of the trial, the Judge was called upon to exclude the paper in question, or that his attention was directed to the effect of this proof upon the question of its admissibility. Under these circumstances, I think the plaintiff cannot now be permitted to object, that the Judge erred in his charge, in submitting the paper to the consideration of the jury. The plaintiff should then have excepted to that part of the charge. If he had done so, there would have been an opportunity (if the objection had been considered tenable) of withdrawing the paper from the jury. A party cannot suffer evidence to be submitted, without question to the jury, take the chance of their verdict being and in his favor, afterwards apply for a new trial, on the ground of an objection made, for the first time, upon the argument of the case. The correct rule is, that if evidence is competent, at the time it is objected to, and the objection is overruled, and it is rendered incompetent by subsequent proof in the course of the trial, the objection must be renewed, or the party must be held to have waived the right to object.

The third and principal objection made by the plaintiff is, that the Judge erred in charging the jury; that the action could not be maintained, on the ground of the admission of the parties, of the fact of partnership, unless they were satisfied that the defendants had both made such an admission. It is conceded, that *Roulstone*is responsible to the plaintiff for the demand, for which the suit is brought, and there is abundant evidence in the case, to show that *Stickney*admitted, and represented himself to be a partner of *Roulstone.*Under such circumstances, the plaintiff contends he is entitled to recover against both, and he relies, for the support of this position, on the case of *De Berkom, v. Smith & Lewis,*[1. *Esp. Rep.*29.] In that case, *Lord Kenyo'n*is reported to have said, *“*that though in point of fact, parties are not partners in trade, yet “ if one so represents himself, and by that means gets credit f*or*goods for the other, that both shall be liable.”

I cannot accede to the correctness of this principle, in the general terms in which it is laid down, if indeed it can be considered *357as applicable *to*the facts, in the case then before his lordship. If the party representing himself to be a partner, does so with the knowledge of the other, or if the party obtaining the goods, knows that they are delivered on the faith of a representation by another,, that he is a partner, the law may well raise a joint assumpsit against both, though no partnership in fact exists. But I apprehend, that a *joint*assumpsit, against two defendants, can never be supported without evidencé, express or implied, that both have assented to the contract. In the present case, the admission by *Roulstone,*that he is liable to the plaintiff, is by no means evidence that he is liable *together with Stickney.*It establishes an individual, not a joint assumpsit. The admission by *Stickney,*of the fact of copartnership, although conclusive as to him, cannot effect the other defendant; for it is well settled, that the confessions or declarations of one defendant, that he is a partner, cannot be used to establish the fact of partnership against another. [*Whitney v. Ferris and others,*10. *J. R.*66. 4. *Stark’s Ev.*1072.] To permit the confessions of *Stickney to*implicate *Roulstone,*as a partner, would be making for the latter a contract to which he never assented, and the practical effect might be, (and indeed it is suggested, that such is the case in the present instance,) to deprive them of the benefit of using Stickney as a witness. A witness is never excluded as interested, on the ground that he has admitted his interest, as that might lead to fraudulent and collusive consequences ; and the same principle may fairly be applied, to admissions of a joint liability with others, as the same consequences might follow.

I am of opinion, therefore, that there was no error, in the charge of the Judge, in this respect, and the motion for a new trial must be denied.

*Motion for a new trial denied.*

[Judah, *Atty. for the plff.*C. Walker, *Atty. for the defts.]*