Perlberg v. Gorham , 10 Cal. 120 ( 1858 )

Burnett, J., delivered the opinion of the Court.

1. It is insisted, by the learned counsel of plaintiffs, that the errors alleged by defendant can not be reached, as they all depend upon the testimony of Stewart, a witness for defendant, and who was improperly admitted to testify, against the objection of plaintiffs. This position is correct, if it be true that Stewart was an incompetent witness for defendant. The witness was examined on his voir dire, and stated in substance that he was one of the attaching-creditors ; that the suit was brought in his name, though the goods sold by him to the vendors of plaintiffs were not his property, he being only a commission merchant; and that he gave a bond of indemnity to the defendant, Gorham, which was released by defendant before the trial.

Stewart, not having been made a party to the suit, and having been released by Gorham, was a competent witness, he being neither a party to the suit or interested in its result. Lucas, Turner & Co. v. Paine & Dewey, (7 Cal., 92.) Whatever amount Gorham might have had to pay, he could have had no recourse upon Stewart. And if plaintiffs had been unable to enforce the collection of the judgment against Gorham, and had then sued Stewart, the result in Gorham's case could not have affected the suit against Stewart, he not being responsible to Gorham even for costs. The fact that the witness did not produce the release of Gorham to him, was no objection to the admission of his testimony, as the plaintiffs did not require its production at the time. The objection to the competency of the witness was general, and not specific, and could not, therefore, embrace this special ground. Had the plaintiffs required the production of the best evidence of the fact of release, then the witness might have produced the instrument.

2. It is also insisted, by the counsel of plaintiffs, that the third release of plaintiffs to Gorham and the attachment-creditors, should not nave been admitted; and, if that be excluded, the errors assigned by defendant can not be reached.

We think the third release was properly admitted. And the subsequent stipulation, substituting the second for the third re-. lease, waived the variance between the second release and the answer.

3. We come now to consider the errors assigned by the defendant.

The Court gave this instruction to the jury: “ That if a partnership existed between Perlberg and Glazer, in the purchase of the goods, this fact did not authorize Glazer to execute the said release in the name of Perlberg."

The release was executed in the names of A. Perlberg and C. Glazer, after this suit was instituted, and was under seal. The bill of sale of the goods was-made to A. Perlberg and C. Glazer, and this suit was brought in their names.

In Collyer on Partnership, it is laid down that “ the general rule of law, that one partner can not bind his co-partner by deed, though applicable, with the exceptions which have been mentioned, to every deed in the nature of a grant, yet does not extend to releases.” (§ 468.) And in section six hundred and thirty-six, it is said, “ that if two partners commence an action, one may release the subject-matter of it.” See, also, Pearson v. Hooker, (3 Johns. R., 68;) Salmon and Brown v. Davis, (4 Binney, 475,) and Emerson v. Knower, (8 Pick., 66.)

We think the Court below erred in giving this instruction.

4. The next error assigned by defendant is, that the Court charged the jury, “ that if they believed, from the evidence, that Stewart procured the releases from G-lazer fraudulently, and with the intent to defraud Perlberg, the releases were void.”

It is insisted, by the counsel of the defendant, that there was no evidence upon which to base this instruction. The evidence was slight, but still there was some evidence, and this was enough to justify giving the instruction.

Judgment reversed, and cause remanded for further proceedings.

Field, J.—I concur in the judgment.