
    *Downer & Co. v. Morrison.
    July Term, 1845,
    Lewisburff.
    (Absent Cabell, P., and Brooke, J.)
    1. Evidence — Entries on Books — Admissibility. — On tlie question whether goods were sold by the plaintiffs to the defendants, or to a third person, the original entries on the plaintiffs’ books charging them to the defendants, are admissible evidence for the plaintiffs.
    2. Same — Letter Written by Plaintiffs to Defendants —Read on Former Trial — Admissibility on Second. —A letter written by the plaintiffs to the defendants, and received by them, being in answer to one by the defendants to the plaintiffs, which had been read as evidence in the cause, having been filed by the defendants, and read by them on a former trial, held under the circumstances competent evidence for the plaintiffs.
    3. Same — Record on Former Suit — Present Plaintiffs and Defendants Not Parties — Admissibility. — The-record of a suit between other plaintiffs and the defendants, to which the present plaintiffs were' neither parties or privies, is not competent evidence against them.
    4. Partnerships — Suit in Partnership Name — Failure to Object to fianner of Bringing — Effect.—In an action by a partnership, the suit is brought in the partnership name of D. & Oo. There are in fact two 21.’s in the firm, and another partner named 22., but no objection is taken to the mode of naming the plaintiffs, on the pleadings. Held. This is no ground for defeating the action on the trial of the cause.
    This is the sequel of the case of Downer & Co. v. Morrison, reported immediately' preceding. The cause having been sent back to the Circuit Superior Court of Law and Chancery for the county of Montgomery, came on for trial in that Court at the' May term of 1841. The object of the suit was to recover from the defendant the price' of certain goods which the plaintiffs alleged had been purchased from them by Morrison & Foster, through their agent Joseph Wil-' son. There was no doubt that Wilson purchased the goods from the plaintiffs; and there was no doubt that Morrison & Foster' received the goods from Wilson; but the' question in dispute was, whether they pur-' chased directly of Wilson, or whether Wil-" son was their agent in the purchase from', the plaintiffs.
    *The plaintiffs to sustain the action, offered in evidence the deposition of George W. Edwards, a clerk of the plaintiffs, who deposed that an account," made a part of his deposition, and which was a duplicate of the account filed with the declaration in the cause, was a true and accurate copy from the books of the plaintiffs, of the original entries of the goods sold, and charged as sold to Morrison & Foster. To the admission of this deposition the defendant objected, and the Court sustained the objection; and the plaintiffs excepted. This is the plaintiffs’ first exception.
    The plaintiffs then offered in evidence the deposition of John C. Hewitt, who de-' posed: That at the time of the purchase of the goods, he was the clerk of Wilson. That Wilson was in the habit of purchasing goods in New York for Morrison & Foster, as their agent. That as such he purchased the goods in question. That in such cases the bills of the goods were made out in the name of Morrison & Foster, as purchased by them and on their account, and handed to Wilson as their agent; and he forwarded' the goods to them accordingly. That such purchases were made by Wilson as the' agent of Morrison & Foster, and not on his' own account. That the goods purchased of the plaintiffs were of the kind and de-' scription set forth in the account annexed to his deposition; and he had no doubt of the correctness of that account. To the reading: of this deposition the defendant objected, but the Court overruled the objection ; and the defendant excepted. This is the defendant’s first exception.
    ' "The plaintiffs having- 'read the deposition of Hewitt, offered to read the account referred to in the deposition, but the defend'ant objected, and the Court sustained the objection; and the plaintiffs excepted. This is the plaintiffs’ second exception.
    The plaintiffs having read in evidence the deposition of Hewitt, also read a letter from- Morrison & Roster to *the plaintiffs, dated Newbern, Virginia, 30th October 1834, in which they refer to a draft drawn by Wilson on Morrison & Roster, in favour of Downer & Co., for the amount of their bill for the goods sold to Wilson as their agent; and say, that they have made an arrangement to send on to Wilson a check for 500 dollars; and had directed him to apply it to the debt of the plaintiffs, which, if it was done, would render it unnecessary to accept the draft; and in that case they intended to return it to Wilson; and if not, to accept it and return it to the plaintiffs. And they say, farther: “If Mr. Wilson refuses to pay any part.. Q.f, said check to you, we will in that event accept the "draft and forward it to you.’’ And they conclude by asking whether, if it should be necessary for them to a'ccept the draft, they could deposit the money when due in any bank in either Lynchburg or Richmond, or pay it over to any house there. The plaintiffs then offered in evidence the draft drawn by Wilson on Morrison & Roster, and referred to in their letter. To the admission of the draft as evidence the defendant objected, but the Court overruled the objection; and the defendant excepted. This is the deféndant’s second exception.
    After the introduction of the foregoing testimony, the plaintiffs again offered- in evidence the account referred to in Hewitt’s testimony, it being a duplicate copy of the account filed with the declaration; but the defendant objected to the account as evidence, and the Court sustained the objection ; and the plaintiffs excepted. This is the plaintiffs’ third bill of exceptions.
    The plaintiffs having offered the fore-mentioned testimony, then read a letter from the plaintiffs to- Morrison & Roster, and which had been received by them, dated 12th of September 1834, in which they say: “In accordance with the tenor of yours of the 18th. ulto., we have applied to Mr. Wilson, who has arranged the acc’t by drawing upon you at 90 days date from the llih ^'current, and we now enclose the draft for your acceptance,” &c. They then offered in evidence another letter of the plaintiffs to Morrison & Roster, dated the 7th of November 1834, which letter had been received by Morrison & Roster, and was filed in the cause by the defendant; and read by him in evidence on the former trial of the cause. In this letter the plaintiffs inform Morrison & Roster, that they had not received any thing in payment of their debt from Wilson; and express their assent that the draft drawn on Morrison & Roster by-Wilson, in favour of the plaintiffs, should be made payable , in . Richmond. The defendant objected to the reading of this letter as evidence, and the Court sustained the objection; and the plaintiffs excepted. This is plaintiffs’ fourth bill of exceptions.
    The plaintiffs having concluded their testimony, the defendant then read in evidence an account current rendered to Morrison & Roster by Wilson, dated the 1st of June 1834, which shewed a balance in favour of Wilson at that date of principal, 1137 dollars 67 cents, and of interest, 21 dollars 51 cents; and then he offered in evidence the record of a cause decided at the same term of the Court at which this case was tried, in which Stout & Ingolsby were plaintiffs, and the defendant, as a partner in the firm of Morrison & Roster was defendant, in which the jury had found a verdict for the plaintiffs for 1144 dollars 2 cents, with interest on 545 dollars 73 cents from the 18th of April 1834, on 535 dollars 91 cents from the 13th of July 1834, and on 64 dollars 38 cents from the 1st of November 1834, for the purpose of proving that the whole fund in defendant’s hands due to Wilson was exhausted by '■ the recovery in that cause. To the introduction of this record the plaintiffs objected, but the Court overruled the objection, and the plaintiffs excepted. This is the plaintiffs’ fifth exception.
    The defendant then offered a witness to prove that the recovery had in the case of Stout & Ingolsby against *the defendant, was for goods purchased by Joseph Wilson, who represented himself as the agent of Morrison & Roster, at the time of his said purchase from Stout & In-golsby, and which goods were forwarded by him to Morrison & Roster. The plaintiffs objected to this evidence, but the Court overruled the objection, and the plaintiffs excepted. This is the plaintiffs’ sixth exception.
    The defendant also offered in evidence a letter from the plaintiffs to Morrison & Roster, dated the 1st of September 1834. In this letter they say, “we are as much surprised to learn that you are not aware of any transactions between yourselves and us, as you could have been at the contents of our letter. At the request of Mr. Wilson we opened an account with your house which has been continued from time to time, without the least suspicion on our part until the 1st of August last that the business was misunderstood by you,” &c. To the introduction of this testimony the plaintiffs objected, because the Court had refused to allow the letter from Downer & Co. of the 7th of November 1834, referred to in plaintiffs’ fourth exception, and which refers to the subject of the letter offered by the defendant, to be read in evidence, but the Court overruled the objection, and the plaintiffs excepted. This is the plaintiffs’ seventh exception.
    The defendant having proved that the firm of Downer & Co. consisted of two persons named Downer and an individual named Hall, then moved the Court to enter a nonsuit, on the ground that all the persons constituting the firm were not made plaintiffs. But the Court overruled the motion, and the defendant excepted. This is the defendant’s third exception.
    The Court having refused to nonsuit the plaintiffs, the defendant moved the Court to instruct the jury: That there was no evidence before them which would justify them in finding a verdict for the plaintiffs, on the *ground that all the parties composing said firm were not made parties plaintiffs. But the Court refused to' give the instruction, and the defendant excepted. This is the defendant’s fourth exception.
    The jury found a verdict for the defendant ; and the plaintiffs moved the Court for a new trial, on the ground that the verdict was contrary to the evidence; but the Court overruled the motion, and entered up a judgment upon the verdict.
    To the refusal of the Court to grant them a new trial, the plaintiffs excepted, and spread the evidence upon the record; but as this Court did not pass upon that exception, a statement of the evidence is omitted.
    From the judgment in the case, the plaintiffs obtained an appeal to this Court.
    John T. Anderson, for the appellants.
    Beverly Johnston, for the appellee.
    
      
      Evidence — Original Entries on Books — Admissibility. —Upon the question as to when the original entries on the plaintiff's books are admissible evidence for the plaintiff the principal case is cited in Wells v. Ayres, 84 Va. 344, 5 S. E. Rep. 21; Barley v. Byrd, 95 Va. 321, 28 S. E. Rep. 329; Richmond, etc., R. Co. y. New York, etc., R. Co., 95 Va. 392, 28 S. E. Rep. 573; Oeters v. Knight of Honor, 98 Va. 206, 35 S. E. Rep. 356; Canny. Cann, 40 W. Va. 159. 20 S. E. Rep. 917; foot-note to Griffin v. Macaulay, 7 Gratt. 476 : 6 Va. Law Reg. 103, 186. See Lewis v. Norton, 1 Wash. 100 (76).
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the Court below erred in its decision, stated in the plaintiffs’ first bill of exceptions, to wit, in rejecting the account referred to in the deposition of the witness Edwards, and which he deposes to be a true and accurate copy from the books of the firm of Downer & Co. of the original entries of the goods therein charged as sold to Morrison & Foster ; that account, so verified, being proper evidence for the consideration of the jury, so far as it tended to repel any intendment or inference from the purchase- of said goods by Wilson, and the delivery thereof to him, that he, the said Wilson, had been debited therewith in the books of said Downer & Co., and so far as the debiting of said goods to said Morrison & Foster as aforesaid, might, in the opinion of the jury, from other evidence in the cause, have been expressly or impliedly recognized by the said Morrison & Foster. And the Court is further *of opinion, that the Court below erred in its decisions stated in the plaintiffs’ second and third bills of exception, to wit, in rejecting the account appended to the deposition of the witness Hewitt, and therein referred to by him, inasmuch as his evidence touching said account, tended to prove the justice of the charges therein made, and the weight of that evidence was proper for the consideration of the jury. And the Court- is further of opinion, that the Court below erred in its decision stated in the plaintiffs’ fourth bill of exceptions, to wit, in rejecting the letter from Downer & Co. to Morrison & Foster, of the 7th of November 1834, therein mentioned; which letter, under the circumstances, and for the purposes stated in that bill of exceptions, was proper evidence for the consideration of the jury. And the Court is further of opinion, that the Court below erred in its decision stated in the plaintiffs’ fifth bill of exceptions, to wit, in admitting as evidence to the jury the record of the suit of Stout & Ingolsby v. Morrison & Foster, in that bill of exceptions mentioned, inasmuch as the said Downer & Co. were neither parties nor privies to that controversy, and the fact of the judgment recovered therein had no legitimate bearing upon the merits of the controversy in the present suit. And consequently, if for no other reason, that said Court erred in admitting evidence of the grounds of said recovery, as stated in the plaintiffs’ sixth bill of exceptions. And the Court is further of opinion, that- there is no error in the decision of the Court below, stated in the plaintiffs’ seventh bill of exceptions; nor in any of its decisions, stated in the defendant’s four several bills of exception. And in regard to the decision of the Court below, overruling the plaintiffs’ motion for a new trial, mentioned in the plaintiffs’ eighth bill of exceptions, this Court deems it proper to decline expressing an opinion, inasmuch as a new trial must be directed, because of theerrors aforesaid, and by reason of those errors, the merits of the *cause were not properly and fully developed on the trial before the jury. It is therefore considered by the Court that the said judgment of the said Circuit Court be reversed and annulled, with costs to the plaintiffs in error, and that the verdict of the jury be set aside, and the cause remanded to the said Circuit Court, for a new trial to be had there of the issue joined between the parties, upon which new trial that Court is to govern itself in relation to the admission and rejection of the evidence above mentioned, by the principles above declared.  