
    Cowan v. Kinney.
    1. On an issue denying partnership, the declarations of one charged with being a partner are competent against him; but such declarations, made when the other alleged partner is not present, are incompetent to> charge the absent party with that relation.
    2. After the death of G., an action was brought against his administrators,. and one P., charging that P. and G. were, in the lifetime of G., partners in business, and, as such partners, became and are indebted to plaintiff, K. The administrators of G. answered, denying each and every allegation in the petition, except the rejection of the claim. P.. answered: 1. By general denial. .2. Admitting his individual liability, and alleging part payment. 3. Plead his final discharge in bankruptcy, which was not denied by reply or otherwise controverted: Held, Under the pleadings, no testimony was required or admissible to establish a claim against P., and that his declarations tending to prove his liability as a partner of G. were improperly admitted, because calculated to mislead and induce the jury to charge the estate of G. with a partnership-liability.
    3. When the testimony of a witness, called to discredit another for truth,. shows that he is testifying from his personal knowledge, and not from the general reputation of the person whose testimony is sought to be-discredited, it is not error to exclude it. It is error, however, to reject the testimony, when the answer of the witness manifestly shows he testified from a knowledge of the general reputation of such person for-truth and veracity.
    Error to tbe District Court of Ashland county.
    This action was instituted by Jacob Kinney, plaintiff below, defendant in error, to recovera judgment against John Cowan and Robert denn, as administrators of the estate of John denn, deceased, and Luther Potter. It is averred in the petition that in April, 1867, and in the lifetime of' John denn, that he and Luther Potter were partners in the purchase aud sale of sheep, and that as such partners they bought a lot of sheep from plaintiff below, and are indebted to him for the same in the sum of $1,650, for which sum plaintiff asks a judgment, with accrued interest. He avers further that he presented his account to the administrators of John Glenn, deceased, for payment, and it was rejected by them.
    The administrators filed their answer, denying all and each of the allegations of fact in the petition, save the rejection of the account. Luther Potter filed his answer, denying, first, each and every allegation in the petition ; and second, alleged that he purchased the sheep on his own responsibility ; had paid Kinney $400 on the purchase; and further set out a certificate in bankruptcy, granted him by the District Court of the Nnited States for the Northern District of Ohio ; that the debt sued on accrued to Kinney prior to his filing his petition in bankruptcy, upon which the certificate in bankruptcy plead was granted to him.
    The plaintiff replied “ that all and each of the following allegations in said answer are untrue, to wit: ‘ That afterward this defendant paid to the plaintiff the sum of $400 upon the sheep so purchased as aforesaid.’ Plaintiff says no part thereof was paid.”
    The first trial resulted in a verdict against the administrators only, there being no finding as to Potter. A second trial resulted in a verdict in favor of the plaintiff and against all the defendants. Before judgment, Potter made a motion for a judgment in his favor, notwithstanding the verdict. His motion was overruled, and judgment entered upon the verdict against all the defendants.
    The administrators moved the court for a new trial, for reasons assigned, substantially as follows : 1. The verdict is against the weight of the evidence and the law of the case. 2. The court erred in admitting the testimony of sundry witnesses to prove the declarations of Luther Potter, made by him when the decedent, John Glenn, was not present. 3. The court erred in refusing to admit the deposition of John Ditzler and Reed McDonald as to the general reputation of Samuel Bakei", a witness in behalf of plaintiff below.
    The administrators of John Glenn, deceased, filed a petition in error in the district court, assigning for error substantially the causes for relief averred in the motion for a new trial, with, the addition that the judgment of the court of common pleas ought to have been given for the plaintiff in error, instead of for the defendant. The proceedings and judgment of the court of common pleas were affirmed in the district court.
    The bill of exceptions, taken in the court of common pleas, on overruling the motion for a new trial, discloses that plaintiff, to sustain the issue on his part, introduced Samuel Baker as a witness, who testified, among other things, that “ about the latter part of March, 1867, I talked with the defendant, Luther Potter, and the deceased, John Glenn, at Jeromeville; before that time, Glenn and I had talked about buying sheep to go east; I first had a conversation with Potter.” Question by plaintiff — State what was said by the defendant, Potter, in that conversation. To which question the defendants’ counsel objected, but the court held the evidence competent as against Potter alone, overruled the objection, and pei’mitted the question to be asked, to which ruling of the court, the defendants excepted. The witness, in answer to the question, testified to a number of statements made by defendant, Potter, tending to show a partnership between John Glenn, deceaséd, and defendant, Potter, in the purchase of the sheep.
    To impeach the general reputation of Samuel Baker, defendants offered the depositions of Reed McDonald and John Ditzler and others; plaintiff objected to the depositions, because the testimony therein was incompetent; the court sustained the objection, and defendants excepted.
    The witness, Ditzler, testified: “ I live in Chambersburg, Pennsylvania; I am aged sixty-three years; occupation, carpenter; I have known Samuel Baker for twenty years; he was a stock-dealer; about six feet high, stout built, dark complexioned; he resided in Fulton county, Pennsylvania; I had the means of knowing his character for veracity and truth; it was bad; I would hesitate to believe him on oath; I would not consider him a safe witness in a court of justice, where interested in any degree.”
    Reed McDonald testified: “ I reside in Chambersburg; by occupation, clerk of hotel; I have known Samuel Baker for twenty years; I mean Samuel Baker, who lived in Eulton county, Pennsylvania, until he removed west, and the same person who was engaged with Glenn, Miller, and Kennedy, in driving sheep ; I had means of knowing his character for veracity and truth, by my knowing nearly all the people resident in the county of Eulton, Pennsylvania; his character for truth and veracity was and is bad; I would not believe him upon his oath.”
    The errors assigned in the Supreme Court, and upon which the judgments of the lower courts are here sought to be reversed, are—
    1. That the court of common pleas which tried the case, and the judgment of which was reversed by said district ■court, erred in admitting the testimony of certain witnesses, namely, Samuel Baker, Gilbert Britton, James Baker, Robert Aultz, and Job Kiuney, as to the declarations of one Luther Potter.
    2. That the said court of common pleas erred in refusing to admit the depositions of certain witnesses, namely, Reed McDonald, John Ditzler, and Logan Kennedy, in regard to the character of one Samuel Baker for truth and veracity.
    3. That the district court erred in affirming the judgment •of the common pleas in said action.
    
      William Osborn, and McGoombs § Curtis, for plaintiff in •error.
    
      T. J. Kenney, for defendants in error.
   Asitburn, J.

The record presents two principal questions for consideration:

1. The admission of certain testimony offered by plaintiff below; and,

2. The rejection of certain testimony offered by the administrators of John Glenn, deceased, defendants below.

The action was brought, as the testimony discloses, by Kinney, to recover the price and value of a lot of sheep bargained and sold by him to the defendant, Luther Potter; that, at the time of the transaction, Kinney had no-knowledge of the existence of any partnership relation between Luther Potter and John Glenn. Plaintiff below charged in his petition the existence of a partnership between them, and relied, for a recovery against the estate of' Glenn, solely upon the supposed fact of an actual partnership between Potter and Glenn at the time of the sale, but' to him unknown, until some time after the transaction.

The fact of a partnership was put directly in issue by the-answer of the administrators of Glenn. This, so far as the-liability of the estate of Glenn was concerned, cast the burden of proof upon the plaintiff, to show the actual existence of a partnership between John Glenn, now deceased,, and Luther Potter, at the time of the purchase of the sheep.

On the trial -below, the court permitted the plaintiff to-show, by the testimony of the witness, Samuel Baker, and others, the declarations of Luther Potter, made in the absence of Glenn, tending to show the existence of a partnership between Potter and Glenn. To this, the administrators objected and excepted. The court held the testimony competent against Potter, under the-issues in the case, and therefore admitted such declarations. Now, if the issues-raised any controverted fact or question as to the liability of Potter under the contract of purchase, then it would be-competent to prove the declarations of Potter, to show his liability, whether under the alleged partnership or otherwise. On the other hand, if the issues clearly admit the-liability of Potter on the contract, and also his full discharge from liability thereon, the declarations of Potter were wholly unnecessary to charge him with an original liability; so that the only purpose his declarations, which were admitted, could serve, was to show a partnership between Potter and Glenn, tending to charge the estate of Glenn.

An analysis of the pleadings between Kinney and Potter shows that Potter distinctly admits his personal liability to Kinney for the price and value of the sheep, to the amount claimed, less $400, which sum Potter avers he paid Kinney on the contract. He also pleads his discharge in: bankruptcy, granted to him by the order of tbe federal court for tbe Northern District of Ohio, on bis petition for that purpose, after this debt in favor of plaintiff bad accrued. By bis reply, plaintiff denies that Potter paid him $400, but takes issue upon no other question of fact in the-answer of Potter. Tbe answer alleging bis discharge in bankruptcy was admitted, on a failure to reply to it. Ontbe issues thus made, tbe plaintiff, on Potter’s admission, was entitled to a judgment against him for tbe full amount of bis claim, without proof. Potter, to avail himself of tbe benefit of bis alleged payment, must introduce proof to sustain it; otherwise, having admitted be purchased the-sheep, at tbe price charged, judgment must go against him for tbe full amount on tbe pleadings. But proof of'payment could in no conceivable way involve tbe question of partnership, so as to render competent, on that question, tbe testimony objected to.

The discharge in bankruptcy, covering this debt, being-admitted, Potter was entitled to a verdict in bis favor, without other proof. His admitted discharge released him from liability on that debt, and no proof was admissible to ■ show bis liability. Plis declarations were not competent, as against him, on the state of tbe pleadings.

Tbe only effect of Potter’s declarations would be, it seems to us, to prejudice tbe interests of tbe estate of Glenn. They would almost necessarily, if credited, have an undue influence on tbe minds of tbe jurors, in inducing-a belief in tbe existence of a partnership between Potter and Glenn, and a verdict against plaintiffs in error. Prom tbe nature of tbe pleadings, such testimony, when admitted,, could be used for no legitimate purpose. Tbe statement of tbe court, on their admission, that they could only be used against Potter, was vain, for tbe reason that, under tbe pleadings, they could not be used for such purpose. No-valid judgment, under the admitted plea in bankruptcy, was possible against Potter. "We think tbe admission of' tbe declarations of Potter, made when Glenn was not pres■ent, were calculated to mislead the jury, and injuriously affect the interests represented by the administrators.

On an issue of partnership the declarations of one of the .alleged partners, made in the absence of the other, can not, as against the one absent, be used to establish the controverted fact of partnership. This rule of evidence seems to be well established. See Grafton Bank v. Moore, 13 N. H. 99 ; McPherson v. Rathbone, 7 Wend. 216 ; Welsh v. Speakman, 8 Watt. & Serg. 257 ; Jennings v. Faster et al., 16 Me. 323; Tuttle v. Cooper et al., 5 Pick. 414 ; Whitney v. Ferris et al., 10 Johns. 66.

It is assigned for error here that the court of common pleas erred in excluding the depositions of Reed McDonald, John Ditzler, and Logan Kennedy, in regard to the character of one Samuel Baker for truth and varacity.

The testimony of Kennedy and Ditzler was properly ruled out. The witnesses testify to their personal knowledge, and not to the general reputation of the witness, Baker, for truth and veracity. The scope of the question put to either witness, eliciting his answer, does not appear, but it is clear they do not speak from the general character or reputation of Baker. The rule of law on this point, as stated in Bucklin v. The State of Ohio, 20 Ohio, 18, is sound, and, tested by that rule, both depositions were properly excluded. The witness, McDonald, testifies :

“ I have known Samuel Baker for twenty years; I mean Samuel Baker who lived in Fulton county, Pennsylvania, until he removed west, and the same person who was engaged with Glenn, Miller, and Kennedy, in driving sheep; 1 had means of knowing his character for veracity and truth, by my knowing nearly all the people resident in the county of Fulton, Pennsylvania; his character for truth and varacity was and is bad; I would not believe him upon his oath.”

The testimony of this witness, we think, was improperly excluded. The record does not show the form of the question put to the witness eliciting his answers, but we think it appears, by the answer of the witness, that his mind had grasped and considering tbe subject of Baker’s general-reputation for truth and varaeity; and from that consideration he made'answer that he had the means of knowing Baker’s character in that respect from knowing the people-amongst whom Baker had lived a long time. Erom a knowledge of his character for truth, thus acquired, he testified. In all such cases the fact to be ascertained by the inquiry is the public estimation for truth in which the witness proposed to be impeached is held. 5 Ohio St. 605 ; 26-Ohio St. 574. The witness uses the word character instead of reputation. That did not render the testimony incompetent. Character, in the sense used by the witness,, is synonymous with reputation. If the deposition of McDonald was, as stated by counsel, ruled out because the-witness used the word character and not reputation, the reason for the ruling was insufficient. 20 Ohio, 18 ; 2 Ohio-St. 44.

We think the deposition of McDonald, to the extent we-have quoted, was competent testimony, aud that the court erred in excluding it.

Judgment reversed.  