Caldwell v. Stileman , 1 Rawle 212 ( 1829 )

Huston, J.,

(after stating the facts,) delivered the opinion of the court, as follows:—

1. As to the insolvency of Holmes, the proof is not verysatisfactory. But one witness says, he became insolvent; another, that he assigned, and the record showed that he' had applied for the benefit of the insolvent acts. This suit was instituted by-writ returnable to the term at which he was to be heard as an insolvent. The narr states, that he had become insolvent, and was. totally unable to pay, &c.—issue might have been taken on this. '

The evidence, as offered, might some of. it, have been objected to, but was not. Instead of parol evidence that he assigned, the assignment must have been produced. % A bill of exceptions to evidence offered, brings up the question of the legality and competency of the evidence. If the evidence is admitted without objection, and there is a demurrer to it, this admits that the evidence was legal, competent, and true, and brings up only the effect of it on the right: every fact sworn to, or shown by written documents, is admitted to be true; and every fair inference from what is given in evidence^ is to be taken as proved. Now, it was expressly sworn that he was insolvent. It was truly said by the láte Chief Justice, that he who demurs to evidence, has an up-hill business of it. . -

I admit fully, that before the estate of a deceased partner can be made liable, it ought to appear that the surviving partner was unable to pay, and I would not advise a verdict for the plaintiff, until he had given pretty full evidence of it. I think a jury ought to presume against inconclusive and defective proof, if fuller and more satisfactory evidence was possible. The representatives of a deceased partner cannot meddle with partnership property, or collect the credits, until the debts are paid. The fund is by law appropriated to creditors of the firm, and they ought to show that it is exhausted . before they resort to the individual estate of a deceased partner.

But in this case we must take it to have been proved.

2. A partnership may be dissolved by the parties themselves, or in some cases by one of them—by the bankruptcy of one, or by the death of one. There is, in some respects, a difference as to the effect of a dissolution in the different ways. We have here to consider only of one, a dissolution by the death of a partner; and this of itself works a dissolution, and so entirely, that want of notice of it does not have the effect of making the estate liable to debts contracted by surviving partners, or for their misconduct. This has been complained of, reconsidered, and I consider it settled, and rightly settled; but, from the nature of the transactions of men, and from the uncertainty of the time when one may die, (or the partnership be dissolved in some other way) contracts may be made, and engagements entered into, which are not complied with at the dissolution; and, for the purpose of making good these engagements, the partnership must have a legal continuance, though determined as between themselves, for every other purpose. Under what-particular circumstances and by what particular engagements it will be so continued, and to what effect, even after the death of one partner, is not easy to define. The wisest judges have not been able to establish any universal rule; and the more there is known of the business of this life and the diversity of engagements, so much more strongly will the difficulty of any general rule without exception, strike the mind.

As to a specific contract to do a particular thing, there is no difficulty. I incline to think that generally, a continuing agreement, to do all work of a certain description, to deliver all flour, or whiskey, or cotton, or tobacco, ,&c. &c., is not within the rule, for if it were, the survivors could continue the partnership as long as they could get the old hands to work, or old customers to continue dealing; in such cases all work done on orders not given in the lifetime of the deceased—all articles delivered after his death must generally be considered as chargeable to the survivors only. The interest of the deceased is fixed by the state of affairs at his death, or at most, when contracts, at his death, are completed. An agreement to do a particular job, may bind the estate of the deceased, not an agreement to do all work, all jobs, at the same rate. This would keep the estate of the deceased liable for years. If it cannot be held liable for years, we can fix no time except death, and engage-merits then specific. In this case the evidence is, that Caldwell, in his lifetime intimated to Stileman, he was to do this work: at another time he urged him to expedite the work of the horse mill, that he might begin this; and he told M‘Credy, Stileman was to do it. There was no error in including this in the verdict. The horse mill was clearly begun in Caldwell’s lifetime: as to the job work, this is before us uncertain. The extract from the books is so short, we do not see it as fully as the court and jury who had the books—it is all charged to J. Holmes. We have no evidence that any of it was ever chargeable to the firm, or is now chargeable on defendant; but the credits would seem to be all entered to this account, and exceed the debits. There is then, no injury to the plaintiff in error by taking in this.

3. The third objection remains to be considered. It is true that on this declaration the plaintiff could not have given evidence of work done after Caldwell’s death, but it was permitted to be given without objection. It was then contended that in no event was Caldloell’s estate liable for this: it was found that for work contracted for in his lifetime, his estate is liable, and then exception is taken that the allegata and probata do not agree. It is too late., I do' not say that on a demurrer to evidence we will so far disregard the pleadings as to give judgment when the narr states no cause of action, or an illegal cause. But, I do say, and all the eases warrant me in saying, that it waives all objections merely formal, and what would be cured by a verdict is waived by a demurrer to evidence. What is contended-for here would make it a demurrer to the narr, a bill of exceptions to testimony, a motion for a new trial, and a motion in arrest of judgment. Now, it is neither of the three first, and after a decision of court on the law, as arising on the facts, it can never be the last, except as I said, in case of a total and radical defect.

Judgment affirmed.