
    John C. Nichols, App’lt, v. Andrew G. White, Resp’t. Imp’d, Etc.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June, 1886.)
    
    1. Evidence—Partnership—Presumption of, arising from use of firm name—What evidence admissible to rebut such presumption— When evidence of declarations competent.
    Where an action was brought upon certain notes signed “Lawrence Brewing Co., S. A. Jewett, attorney,” and after the plaintiff had made out a prima faeie case against the defendant White, the defendant W. H. N.; who was the endorser on the notes and who procured the plaintiff to purchase them; was called by White as a witness. Defendant having proved by-this witness that he was at one time one of the firm of the L. B. Co., that C. H. N. who was brother of the plaintiff and related to witness was also at one time member of said firm. Held it was competent for the witness then to testify that he purchased from J. C. H. the plaintiff, the interest in said firm standing in the name of C. H. N., and that the plaintiff at that time asserted that he owned said interest.
    3. Same—When question which in form asks for an opinion admissible.
    It was not error to allow the witness, W. H. N , to answer the question “was the relation between you and A. Q-. W. & Co., at any time severed,” when it was not put to obtain an opinion, but to direct the attention of the witness to the subject-matter upon which he was to be interrogated. Held that a question calling for a ge eral summary or opinion of a witness as to whether a certain person had done as he agreed with the witness was properly excluded while the court permitted the witness to state just what that person had done.
    
      3 Same—When competent to prove declarations of intention to
    CARRY OUT AN AGREEMENT.
    Under an allegation in the answer that the partnership between Nichols and White had been dissolved. Where letters had been put in evidence showing an offer to sell out on the part of one partner and what was claimed to be an acceptance dated October 14, 1871, on the part of the other. The evidence also showed that one K had been White’s agent to take charge of his interest in the business from the commencement" of the partnership to said October 14, and that Nichols informed K of the contents of the letter of October 14th. Held, that the evidence of defendant Nichols, that after this letter, K left, taking his hooks and papers with him, that witness continued to do business by himself and appointed Mr. Jewett his attorney, and as such he signed all checks and notes, and that he told Jewett after October 14th that the partnership was dissolved, and that he would appoint him attorney, was competent; that the declarations of the plaintiff Nichols were competent to show he was carrying out and acting upon the agreement of dissolution but not that the declarations were true, and were as declarations evidence against the plaintiff. Declarations are sometimes quite as much “conduct ” as anything else.
    
      4. Same—When opinions predicated upon memoranda made long before ARE COMPETENT AS EVIDENCE—WHEN MEMORANDA MAY BE USED TO REFRESH RECOLLECTION.
    In order to prove the defense of pajunent of these notes by the sale of coal the proceeds of which the plaintiff was charged to have received, there having been no accurate measurement made of the quantity, a witness was called by defendant who swore that he saw the coal in bins and that he made correct estimates of the several amounts stated; that at the time when he made such estimates he made correct memoranda as to the quantity estimated; that he was accustomed to estimate coal and familiar with that kind of work; that in the opinion of the witness the estimates were substantially correct; that his recollection of the amount of coal that was then on the wharf (fourteen or fifteen years before) was guided by the books and papers; he recollected the coal was there; knew it was; the paper placed it so he could recollect it; that after looking at the papers he could remember the estimate he made, so as to state it; that the amount to the best of his judgment and opinion was 1,886 tons. Held, no error and the evidence was properly admitted. Halsey v. Sinsébcwgli, 15 N. Y., 485, followed.
    Appeal from an order denying a new trial made upon the judge’s minutes and from a judgment entered upon a verdict rendered at the Albany county circuit against "White, the only party defending.
    
      Isaac Lawson, for app’lt; N. C. Moak, for resp’t, White.
   Peckham, J.

After the plaintiff had made out aprima facie case against defendant White, the defendant William H. Nichols was called by White as a witness. Nichols was indorser on the notes and procured the plaintiff to purchase them. The defendant’s counsel proved by this witness that he was at one time of the firm of the Lawrence Brewing Company, doing business in the city of Lawrence, Mass.;" that Charles H. Nichols was also at one time a member thereof; that he was a brother of the plaintiff, and the witness was their nephew. Prior to the connection of witness with the firm, business was carried on in the name of the Lawrence Brewing Company. The court then permitted the defendant to prove by this witness, under plaintiff’s objection and exception, that he, the witness, purchased of John C. Nichols, the plaintiff, the interest in the firm doing business as the Lawrence Brewing Company, standing in the name of Charles H. Nichols, and that the plaintiff at that time asserted that he was the owner of the interest which stood in the name of Charles H. Nichols. The evidence does not seem to be very important, but is yet, I think, competent.

The notes were signed “Lawrence Brewing Co., S. A. Jewett, attorney.” In order to show that no presumption of the existence of a partnership at the dates of these notes in suit, between White and William H. Nichols, was necessarily to be indulged in by plaintiff because the words “ Lawrence Brewing Co., S. A. Jewett, attorney,” appeared at the foot of each note, it was competent to show facts from which it would appear that those words were nothing more than a trade-mark, used by different persons as they succeeded to certain business interests in Lawrence, of a brewing nature, and that plaintiff knew it, as he had himself negotiated the sale to the witness of his brother’s interest in the concern, which used this name, and that at such time he claimed he was himself the owner of that interest. There was no error committed in allowing defendant Nichols to answer the question, “was the relation between you and Andrew G-. White & Co. at any time severed? ” If that were the full history of the matter, it might be that the plaintiff’s exception would have been well taken. It is evident, however, that the question was not put to obtain the opinion of the witness as to the effect of certain facts not stated, but was put in the light of a question to direct the attention of the witness to the subject matter upon which he was to be interrogated, for as soon as he was answered affirmatively, the defendant’s counsel directed him to go on and detail how the relations between him and White were severed and what he, the witness, did in relation thereto. That called for the facts and the witness proceeded at once to give all of them. It was nothing more, as the result showed, than asking the witness to state whether anything had ever occurred to sever the relations between him and White, and if so, to state what it was in detail. In this there was no error.

The court was right in refusing to allow the plaintiff’s counsel to put the question to the witness Nichols, “did Mr. White or Mr. Newcomb, on behalf of Mr. White, keep the promises to you of letting you have money as mentioned in those letters?” While denying to plaintiff’s counsel the right to put such a question, the court stated that he might answer what they did in regard to it. The first question' called for a general summary or opinion of the witness as to whether White had done as he agreed, while the court permitted the witness to state just what he had done.

The evidence admitted for the purpose of sustaining or attempting to sustain the fact of a dissolution of the partnership between Nichols and White, was all of it perfectly competent. Letters had already been put in evidence showing an offer to sell out on the part of one party, and what was claimed to be acceptance on the part of the other, the acceptance being dated October 14, 1871. The evidence also showed that a Mr. King had been made the agent of White to take charge of his interest in the brewery from the commencement of the partnership to October 14. Nichols informed King of the contents of the letter of October 14.

The witness, Nichols, then stated that after this letter Mr. King left, took his books and papers with him out of the office and the witness continued to do business by himself, and Mr. Jewett was appointed his attorney and he continued business under the name of Lawrence Brewing Company, and all checks and notes were signed by Jewett, and after the fourteenth of October, Nichols told Jewett the partnership was dissolved and he would give him the power of attorney. All this evidence was competent for the purpose of showing acts and declarations of either partner .after the alleged dissolution, as bearing upon the question as to whether in the understanding and belief of the parties there had been one or not, and whether it had been effectually carried out. The declaration of one partner, in the absence of another and as against such other, cannot, of course, in and of itself, prove a dissolution. The declaration here was not offered alone for such a purpose, but it was competent to show as a fact that after this October 14-th Nichols did business alone; that he said he would give another power óf attorney, and stated to Jewett that the partnership was dissolved. That declaration did not, of course, dissolve it, but when the claim was made on the part of White that the partnership was dissolved on the fourteenth of October, the acts and declararations of Nichols subsequent to that date were competent evidence as bearing upon the fact of dissolution, and his •understanding of it, to be taken for what they were worth, not as I say, as direct evidence of dissolution, but as part of the evidence of the understanding and action of Nichols with regard to that fact. Declarations are sometimes quite as much “conducidas anything else, and these declarations of Nichols are competent to show he was carrying out and acting upon the agreement of dissolution, and not that the declarations were true, and were, as declarations, evidence against the plaintiff.

In a late case in the House of Lords (The Aylesford Peerage Case, reported in 11 App. Oases, 1), it was held that the declarations of the mother of a child claimed to be a bastard, although born in wedlock, by which the mother stated the child was a bastard, were admissible as evidence of the conduct of the mother, although she could not be allowed to make such statements in the witness box. I think the evidence offered was plainly admissible on the principles I have stated.

In order to prove the defense of payment of these notes by the sale of coal, the proceeds of which the plaintiff was charged to have received, it became important to show the amount of the coal of which the plaintiff had received the proceeds. There had been no accurate measurements made of the quantity, but a witness was called by defendant’s counsel who swore that he saw the coal in bins, and that he made correct estimates of the several amounts stated, and that at the time when he made such estimates he made correct memoranda as to the quantity estimated. He made in such memoranda correct estimates at the time as near as he could estimate; that he was accustomed to estimate coal, and familiar with that kind of work. In the opinion of the witness the estimates were substantially correct as to the quantity of coal on hand at the different times when they were made. On being further examined by plaintiff’s counsel, he said his recollection of the amount of coal that was then on the wharf (fourteen or fifteen years before) was guided by the books and the papers; he recollected the coal was there; knew it was; the paper placed it so he could recollect it.

On his redirect he said, after refreshing his recollection . by looking at the paper, he could state his estimate of the quantity of coal on Bartlett’s wharf in July, 1871, but he could not remember the estimate of all the paper without looking at the paper. At the time he made the memoranda he made it correct, and intended to make it correct, as a correct estimate of the quantity of coal which was there according to his best judgment. After looking at the papers he could remember the estimate he made, so as to state it. The witness was then, under objection and exception by plaintiff’s counsel, permitted to answer this question: Now tell us the number of tons on the wharf on the 15th of July, 1871, according to your best judgment and opinion ? And the witness replied 1,886 tons.

Plaintiff’s counsel now claims that in the decision of the court there was error. In this we do not concur. The witness was a man familiar with that kind of work, accustamed to estimate coal, who saw the coal, and he swears' that he then .made an estimate of it. that he intended to make a correct one, and believes he did, and he made at that time a memorandum of such estimate, and which memorandum was a correct one of the estimate.

It seems to me entirely clear, upon principle and authority, that such witness may look at the memorandum and thus refresh his recollection, even though he said he had no recollection whatever of the amount of the estimate outside of the memorandum. The learned counsel says the estimate was not made on oath. That is true. Neither is any other memorandum of a fact, made at the time, made on oath. Suppose he had said he weighed the coal and made a memorandum of it at the time, which was correct when made, but he had no recollection of the amount the coal weighed outside of the memorandum.* I understand counsel to admit that the authorities sustain the right of the witness to read from the memorandum, or that it may go in evidence. The distinction I understand him to draw is, that in the one case it is a fact which has been minuted down in the memorandum, and in the other it is an estimate of a fact or quantity, and that no case has gone thus far.

The principle decided in Halsey v Sinsebaugh (15 N. Y., 485) warrants the admission of such evidence. An estimate might be made by a person competent to make it. If so, and he does make such estimate* which he swears he means to, and as he believes did make correctly at the time, and the memorandum of which he swears he then made correctly, why should he not be permitted to state what that memorandum was in that case, as much as in the case of a memorandum of fact ? There is a difference, of course, in the weight to be attached to the estimate, but only because of the difference between a fact and the estimate of a fact, and if the latter is in itself admissible (which counsel does not deny), then I cannot see why a memorandum of the estimate should not be admissible just as much as the memorandum of the fact. Both estimate and fact are made without any oath at the time, and both come in under the oath of the witness that the memorandum was correct when made of á fact (or estimate) then happening or made. In this case the witness tells the number of tons by his estimate or opinion, and the fair import of the whole evidence is that he tells it from the memorandum he made at the time. I think the evidence was properly admitted.

The evidence of Mr. King that the interest of defendant White was really his own, and the evidence of the acts and declaration of King after the alleged dissolution, as bearing upon the understanding of each of the three persons in any way interested in the partnership as between themselves, properly came m upon the same principle already alluded to m discussing the admissibility of evidence of the acts and declarations of the witness Nichols, the partner of the defendant White. The case, as it seems to me, was very carefully tried and a verdict rendered upon evidence which was quite conflicting, and there being no errors in the record the judgment should be affirmed, with costs. Bookes, P. J., and Landon, J., concur.  