
    John T. Sloan vs. Anson Bangs & Co.
    
      Partnership — Contract—Competency of witness.
    
    Where S., one of two members of a firm engaged in the manufacture of carts, agreed with defendants to make and deliver to them a number of carts, which the firm afterwards made and delivered, held, upon the evidence, that the contract was not made with the firm, that S. alone could sue upon it, and that G., the other member of the firm, was a competent witness for S., he, G., testifying that the firm' had declined the contract, that it looked to S. alone for payment, and that he, S., . had paid G. his share by giving him his promissory note.
    BEFOSE O’NEALL, J...AT ANDEKSON, JULY, EXTEA TEEM, 1857.
    Tbe report of bis Honor, tbe presiding Judgs, is as follows:
    “ This case was twice tried, first on a plea in abatement, that tbe plaintiff was tbe partner of ¥m, H. D. Gaillard •& Co.,- with whom, in law, tbe plea alleged tbe contract was made, and that therefd|e be could not sue alone; upon this plea an issue to tbe country was made, and resulted in a verdict for tbe plaintiff, and there would bave been an end of tbe case, except to as'sess tbe damages of tbe plaintiff bad it not been that an order, by consent, bad been made, that' tbe defendants, in'such an event, should bave leave to answer over. They pleaded tbe general issue, and tbe case was tried, and resulted in a verdict for tbe plaintiff on tbe merits.
    “Tbe grounds of appeal, in both issues, are so identical, that I shall report tbe case as one.
    “Tbe defendants, Anson Bangs & Go., were contractors on. the Blue Ridge Railroad; they desired to have constructed two hundred and fifty carts. On the 13th of July, 1853, Anson Bangs wrote to John T. Sloan to take the contract. Much of the appeal rests upon .the competency of Wm. H. D. Gaillard; he was examined in both' issues, both on his voire dire and in chief. He stated that the firm of Wm. H. D. Gaillard & Oo., engaged in making carriages and buggies, at Pendleton, consisted of himself and John T. Sloan. He said that he refused to have any thing to do with the contract with Bangs. Sloan undertook the contract alone, and went on to the North. On his return, he gave the firm the opportunity of making a part of the carts; and Sloan has paid the company in full; their settlement was made in the progress of this case. The damages here, he said,, will not fall on him. If the carts, as manufactured by the shop, produce loss, then the shop would lose pro tanto; if they were a profitable job, then, of course, he would share in the profits. The carts were charged on the books to Anson Bangs & Co. The first bill for fifty carts was made out in the name of W. H. D. Gaillard & Co. The plaintiff, on the 21st January, 1854, wrote a letter, announcing the completion of fifty carts, and asking a payment, and signed it W. H. D. Gaillard & Co. On the 5th of May, 1854, John T. Sloan, alone, drew a draft on Anson Bangs & Co., in favor of W. H. D. Gaillard & Co., for fifteen hundred dollars, on account of railroad carts; they paid this draft. He (Gaillard) stated he received the subsequent payments from Bangs & Co., by the verbal authority of J. T. Sloan. He proved a letter of J. T. Sloan, 25th' November, 1854, addressed to Bixby and Birdsall, in which he speaks of “ our account,” and “ we are not particular about the money.” The settlement hereinbefore spoken of, and by which Sloan paid him for all his interest in the manufacture of the carts, was intended to remove any objection to his competency as a witness in this case. He 'said he looked to Anson Bangs & Co., through tbe plaintiff, for tbe work done by tbe firm. He repeated be bad nothing to do with tbe contract about tbe carts. Sloan said, if you will make tbe carts, yoú can get wbat I am to bave. He said Sloan said to bim Bangs wanted to bave tbe carts made; witness replied, be wanted to bave nothing to do with them; Sloan then said, be would have them made, if be bad to hire bands to make them. At first be only engaged to make fifty at tbe price Sloan was to bave, then two hundred and fifty. He repeated be ba'd nothing to do with Bangs.
    I bave thus stated tbe whole testimony of Graillard on tbe objection as to competency; and as to bis interest in the contract, I thought be was competent; that Sloan alone made tbe contract, as appeared from Bangs’s letter, and tbe proof of Mr. Graillard; that tbe firm were merely sub-contractors. There was proof to show that Gaillard & Co. purchased many of tbe materials for tbe carts, and one witness, Myron Bangs, proved that be beard tbe plaintiff say tbe carts were to be built by W. H. D. Graillard & Co., at Pendleton. .
    “ On tbe part of tbe plaintiff, Wagner proved that Bangs inquired whether tbe plaintiff was responsible; be said that Bangs & Co. bad macle a contract with bim for two hundred and fifty carts. Abram Sergeant proved that Bangs told bim that be was to give tbe plaintiff fifty dollars for each cart, and tbe railroad freight from Charleston. H. Campbell said that Bixby, one of tbe partners of Bangs & Co., said there were carts at Pendleton which belonged to John T. Slohn, or him, and be would run tbe risk of letting bim have one.
    "T. R. Breckenridge proved that Sloan and Bangs came t'o Laurens’ Mill. Sloan, Laurens and witness, made a contract as to tbe lumber for the carts.
    “I bave thus stated, I think sufficiently, tbe facts of tbe case to enable tbe Court to decide whether Wm. H. D. G-aillard was a partner with Sloan in the contract, and whether he had such interest in the case as rendered him an incompetent witness ? A diagram of the cart to be made was furnished by Bangs, and the plaintiff’s work I thought fully corresponded with it. There was a vast deal of proof whether the one hundred and fifty carts made, were made according to the contract, and whether they were well or ill made, and as to their value. So, too, thére was proof that the defendants directed the plaintiff, or Gaillard & Go., to stop making the carts when one hundred and fifty were made, and that damages were sustained by the plaintiff in the loss of materials, &c., to a large amount.
    On the plea in abatement, I submitted the questions to the jury, fully -and fairly, whether ¥m. H. D. Gaillard was a partner with Sloan in the contract. The testimony on both sides was fully and fairly collated, and submitted; and I gave as I suppose, no indication of my conclusion, and from my notes of my charge no comments like those contained in the grounds, appear.
    “ On the general issue, I again submitted to the jury whether the contract was made with Sloan alone, or with Gaillard & Co. I gave no such instructions as that contained in the fifth ground, for the letter was most material to show with whom the contract was- made; and the specifications of the carts; the offer of price, I thought, was not conclusive, and the parties might afterwards very well have added the freight on the railroad ; so, too, the specifications of the carts might have been altered by Bangs, as proved by Gaillard, and as shown by the diagram; and further, that if he was believed, one hundred and fifty carts were made, delivered and accepted. The value of these carts were variously fixed by different witnesses. If the sixth ground means that I refused to permit the jury to have the diagram to look at, and examine in Court, or in their room, it is founded in mistake. If it means that I did not submit the question to the jury upon tbe letter, diagram and proof, that also is a mistake.
    “I gave the jury the full opportunity of finding for the ’defendants, if they chose; if they found for the plaintiff, I made various calculations to aid them in their conclusions. They took their own view of the sum to be allowed for the carts, and the damages. Interest was allowed according to the contract on the price of the carts, none was allowed on the damages found for the dissolution of the contract by the defendants.
    “ The jury found for the plaintiff the sum of three thousand six hundred and sixty-six dollars and sixty-six cents, after .deducting the defendants’ payments, which I thought a very reasonable finding.”
    From the verdict on the issue in abatement, the defendants appealed, and now moved this Court for a new trial, oñ the grounds:
    ■ 1. Because his Honor admitted W. H. D. Graillard to give testimony in the case, after he had acknowledged, on his voire dire, that he was a partner with plaintiff in. the manufacture of wheel carriages, under the firm of W. H. D. Gaillard & Co.; that the carts, for the making of which this suit was-brought, were made at the shops of W. H. D. Graillard & Co., by the concern ; that he was a partner of plaintiff in making said carts, and was to share with him in the profits and loss of their manufacture; 'that in their books the carts were charged to Anson Bangs & Co., and not to John T. Sloan; that bills were made out in the name of W. H. D. Graillard & Co., against Anson Bangs & Co., for the carts as made; and that when payments were made by Anson Bangs & Co., for the said carts, they were receipted for by W. H. D. Graillard & Co., and credited to Anson Bangs & Co., on their books.
    
      2. Because bis Honor charged the jury, that notwithstanding the contract to make the carts was made by John T. Sloan, a partner, and the only partner with W. H. D. Gaillard in the firm of W. H. D. Gaillard & Co., and notwithstanding the carts were made by the said firm, charged in the books of the firm to Anson Bangs & Co., payments made the said firm by Anson Bangs & Co., for the carts, yet the jury might presume it was not a partnership demand of W. H. D. Gaillard & Co., against Anson Bangs & Co., but an individual demand of John T. Sloan against the said Anson Bangs & Co., upon which he, the said John T. Sloan, might sue in his individual capacity.
    3. Because W.H. D. Gaillard admitted in his testimony that he and his partner, John T. Sloan, had had a settlement after this action was brought, for the purpose of trying to make him, the said W. H. D. Gaillard, a competent witness, to prove the demand of his co-partner, John T. Sloan, against the said Anson Bangs & Co., on account of said carts.
    4. Because such a stratagem, entered into by partners in making the carts, and who had equally shared the profits of the contract, with a view of sustaining the action, was in violation of well-known principles of the common law, which forbids any one to give evidence in his own case.
    5. Because W. H. D. Gaillard having shared the profits of the contract, could not be released by his partner, or release his partner, so as to make him a competent witness to testify in the case.
    6. Because the finding of the jury was not only without evidence, but contrary to the evidence and the whole circumstances of the case, which showed that the contract to make tbe ca.rts was made by John T. Sloan, as a member ' of tbe firm of W. H. D. G-aillard & Go., and that tbe carts were made by tbe said firm, charged in tbeir books, and receipted for in tbe name of tbe firm.
    From tbe verdict on tbe general issue, tbe defendants also appealed, and now moved tbis Court for a new trial, on tbe grounds:
    1. Because bis Honor admitted W. H. D. Gaillard to give testimony in tbe case for tbe plaintiff, after it was shown, as is respectfully submitted, by bis own acknowledgments on bis voire dire, and by the papers which be proved in the cause, that be was interested alike in tbe manufacture of tbe carts, for which tbe action was brought, and in tbe result of tbe suit, and was, therefore, an incompetent witness.
    2. Because bis Honor, charged tbe jury, that there was nothing in tbe case to show that W. H. D. Gaillard, was a partner with plaintiff in tbe manufacture of- the carts; that tbe letters written by him, and all be did in tbe matter, was for plaintiff and easily explained; that the question as to whether be was a partner or not, was settled by ‘the verdict on tbe plea in abatement; when, it is respectively submitted, after Mr. Gaillard bad proven in tbis case that tbe carts were manufactured by W. H. D. Gaillard & Go., himself and plaintiff constituting tbe firm, that- be was interested in tbeir manufacture, shared in tbe profits- and loss of tbe contract, charged tbe carts on the books of "W. H. D. Gaillard & Go., to defendants, made out tbe bills for tbe carts in tbe name of W. H. D. Gaillard & Go., and receipted for payments for said carts in tbe name of W. H. D. Gaillard & Go., bis Honor should have submitted to tbe jury to pass upon tbe question of fact, as to whether "W. H. D. Gaillard was a partner in tbe contract for tbe carts or not,- and should have said to them, that if they believed him to be a partner, then they had a right, and it would be their duty to reject his testimony.
    3. Because W. II. D. Graillard admitted in his testimony, that he and plaintiff had made a settlement after this action was commenced, for the purpose of trying to make himself a competent witness for plaintiff; that plaintiff had given his note to W. H. D. Graillard & Co., for making the carts, and yet he refused to say whether he ever expected plaintiff to pay said note or not; and whilst he admitted that he was interested in the profits and loss of manufacturing the carts, he would neither admit or deny that he was to share the damages which were claimed, and might be recovered in this case; whereby was evidenced an ingenious stratagem, to render competent, evidence which the parties knew to be inadmissible otherwise —which stratagem, if successful, must defeat the ends of justice as secured by the great principles of the common law, prohibiting a party from testifying in his own cause, and should not, therefore, be allowed to prevail in this Court.
    4. Because W. H. D. Graillard, having shared in the profits of the contracts for making the carts, with his partner, John T. Sloan, the plaintiff, could not be released by his partner, or release his partner, so as to make him a competent witness to testify in the case — and his testimony, therefore, should have been rejected by the Court.
    5. Because his Honor, 'charged the jury that the letter from Anson Bangs to John T. Sloan, dated 13th July, 1853, was no evidence of the contract for making the carts; that the only evidence of the contract was to be found in admissions of Anson Bangs, as proven by Col. Wagner and Mr. Sargent; when, it is respectfully submitted, that the letter of Anson Bangs was, under the circumstances, the best evidence of a contract, and it should, at all events, have been submitted to the jury, to inquire and determine wbat the contract was.
    6. Because bis Honor charged the jury that the contract had been complied with by plaintiff, as to its general scheme, referring to a diagram offered in evidence by plaintiff, without giving it to the jury to determine what the contract was, whether it was best specified and illustrated by the said diagram, or the letter of Anson Bangs, before mentioned, and whether the contract had .been complied with or not.
    7. Because his Honor charged the jury that the verdict should be for plaintiff, and for a sum not exceeding four thousand seven hundred and forty-nine dollars, nor less than one thousand three hundred and fourteen dollars, when it is respectfully submitted, that under the pleadings and proof the verdict- might have been for defendants; and if for plaintiff, should have been for a less sum than one thousand three hundred and fourteen dollars.
    8. Because the sum found by the jury against the defendants is excessive, not warranted by the testimony, and works a great injustice and wrong to defendants.
    
      Reed, Perry, for appellants.
    The action should have been in the name of the copartnership, and by the copartners. At all events Gaillard had a direct pecuniary interest in the result of the suit, and was therefore an incompetent witness to. testify. Grace vs. Smith, 2 Bl. R. 998; Pod & Pod vs. Halsey, 16 Johns. R. 84; Simpson vs. Felts, 1 McC. Oh. 213 ; Benson vs. McBee & Alexander, 2 McM. 91; Bartlett vs. Jones, 2 Strob. 471; Pierson vs. Steinmyer, 4 Rich. 309; Holliday vs. Daggett, 6 Pick. 359. Private arrangements by one partner for his separate benefit, are not valid. Ramsey & Taggert 
      
      vs. McBride & Passey, 4 Strob. 14; Story on Part. 354; 1 Chit. PL 11; Cow on Part. 18, 16.
    
      Harrison, McGowan, contra.
   The opinion of the Court was delivered by

O’NeaXjL, J.

The question mainly relied upon in this case is the incompetency of W. H. D. Graillard, a witness on both issues. On the first, that of the plea in abatement, there can be no doubt that he was competent, when we look at the way in which he was presented. Because he was alleged to be Sloan’s copartner was certainly no reason, why he was to be excluded. To show his interest the defendant examined him, on his voir dire, and he stated, “ that the firm of W. H. D. Graillard & Co., consisted of himself and the plaintiff Sloan. But that the firm made no contract with the defendants. They made the carts for Sloan. He, Graillard, refused to have anything to do in the contract with Bangs & Co. Sloan after his return from the North, gave the firm an opportunity of making a part of the carts. Sloan he said had paid the company in full. • He (witness) has nothing to do with the case.” This is his precise examination upon the voir dire, which I have taken from my notes, so that the question of incompetency might be better understood, than from the mass of his proof, as set down in my report. Beyond all doubt, he could not'be excluded from that examination. When sworn, in chief, if there were any indication of interest, or bias, such went to his credit, and of that the defendants had the benefit before the jury, who notwithstanding these,' and every other fact relied upon by the defendants, found, that he was not' the partner of Sloan in the contract with Bangs & Co.

On the second issue, that in which the plaintiff went to the jury to recover as a sole contractor, Mr. Graillard when presented as a witness could not be challenged as a copartner, for tbe verdict concluded tbat matter; but still tbe question was first presentable, bad be an interest in tbe event of this suit? and bere again, be was examined touching bis interest, and be said, “tbe damages bere will not fall upon bim; if tbe carts as manufactured produce loss, tben tbe sbop would loose, otherwise be would have a share of tbe profits.” This short note of bis testimony, must be explained before we can understand it. He and his firm were sub-contractors at first, for a part, and tben for all tbe carts, under Sloan. He bad affirmed tbat Sloan bad settled with bim for bis part of tbe job. Tbe words which be used meant, that if tbe workmanship and materials for tbe carts, cost more than dhe stipulated price, be as one of tbe partners in the sbop would lose pro tanio: if tbe price exceeded tbe workmanship and materials, be would gain pro tanto. This was no interest in tbe suit. For, let Sloan gain or lose, be was liable to pay Grailliard & Co. tbe contract price. Indeed be bad already done it, by giving Graillard bis note for bis share. It was no objection to bis competency when asked, — whether be would enforce tbat note, if Sloan lost this suit? be said be did not know what be would do. Legally be could enforce tbe note, — as an act of friendship be might forgive it.

There was nothing therefore to exclude bim in tbe beginning, and when examined on all facts of the case, I think there was nothing to show be bad any interest in tbe event of this suit.

Tbe parties (defendants) bere again, bad not only tbe benefit of urging apon tbe jury tbe various facts showing bis participation in tbe manufacturevof tbe carts, as affecting bis credit, but again they put to tbe jury tbe question, whether, it bad not been shown tbat Sloan was not a sole contractor with Bangs & Co., but tbat in fact be and Gaillard were joint contractors, (although not partners), and that question was again fairly and distinctly submitted to tbe jury, and upon it a second verdict was found for tbe plaintiff. How can it be that against Graillard’s oatb, and against two verdicts, we can be called.upon to declare bis testimony to be incompetent? I am sure I cannot, and of that opinion is tbe Court. The other grounds relate to the facts — upon which the finding of the jury is much apter to be right, than any guess of this Court would be.

The motions on both issues are dismissed.

Withees, WhitNer, G-lover, and MüNRO, JJ., concurred.

Motions dismissed.  