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January, 1842.

Callender

v.

Sweat et al.

On the trial in the county court the plaintiff introduced ADDISON, testimony tending to show, that, on the 25th day of April, A. D., 1839, Sweat and Lewis entered into partnership, in the business of keeping a tavern, in Shoreham, and of buying and selling cattle; that the partnership was to continue one year from the 1st of May, 1839; that Sweat and Lewis each owned a small farm, the proceeds of which were to go into their partnership business, and that both were to give their personal services to the business of the partnership; that they were to share equally in the profits and loss; that they both moved into the tavern house, and commenced the business of tavern-keeping, on the first day of May, 1839, and continued the business, as partners, both giving to it their personal services, and the services of their families, until November, 1839, when Sweat failed and the business of tavern keeping was given up.

There was also testimony tending to show that Lewis had admitted the existence of the partnership. The plaintiff further introduced testimony tending to show that in June, 1839, he signed a note with Sweat to the Vergennes bank for one hundred and fifty dollars; that Sweat was the principal in said note and received the money for it at the bank, and that this money went into the business for the benefit of the partnership in purchasing supplies for the tavern, and that the plaintiff was compelled to pay, and did pay, the whole of the note to the bank.

The defendant, Lewis, among other things tending to disprove a partnership, offered in evidence an assignment, made by Sweat at the time of his failure in November, 1839, to the plaintiff and another, who were sureties for Sweat, to indemnify them, and to pay other debts, by which assignment the tavern furniture and tavern accounts, among other things, were assigned, and the assignment specified the debts to be paid out of the property assigned, but did not contain the demand for which this suit was brought. The plaintiff objected to the admission of the assignment, but it was admitted by the court and a verdict was returned for the defendants.

The plaintiff excepted to the decision of the court, in admitting the assignment.

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ADDISON, January, 1842.

Callender v.

Sweat et al.

U. H. Everest, for plaintiff.

We contend that the court erred in admitting the assignment offered by the defendant and that it was improperly admitted by the court.

It was not relevant to the issue. It had a direct tendency to mislead the jury in making up their verdict, and without the admission of the assignment a verdict must have been found for the plaintiff on the evidence by him introduced.

Evidence must be relevant to the facts in issue, for no evidence can be admitted that does not tend to prove such facts. 1 Swift's Dig. 768.

It is for the court to determine the admissibility of particular evidence, with reference to the facts in issue. 1 Stark. Ev. 430.

E. N. Briggs, for defendants.

The testimony introduced in this case was mostly directed to the issue, whether Lewis was a partner with Sweat in business in the spring and summer of 1839.

For the purpose of proving the copartnership, it was competent for the plaintiff to prove an agreement between Sweat and Lewis, or articles of copartnership, to show that they were in fact copartners, sharing in the profits and loss of the business transacted, or that they held themselves out to the public as partners, or to show that Lewis was a secret or dormant partner, participating in the profits of the business.

It was certainly competent for Lewis, on his part, to rebut the evidence of the plaintiff, by showing that he was not a partner with Sweat; that there was no agreement to share in the profits and loss of the business to be transacted, and to show that he was not a dormant partner.

A joint participation in the profits of the keeping of the public house might make Lewis liable.

A dormant partner is one who is a participant of the profits of the trade.

He is liable as a partner because he receives a part of the fund which is the proper security for the satisfaction of the debt. 16 Johns. R. 40.

Was the assignment made by Sweat to plaintiff in November, 1839, admissible evidence?

It was introduced to support the issue, on the part of Lewis, ADDISON, and had that tendency.

It tended to prove that Sweat assigned to the plaintiff the proceeds of the tavern business, the tavern furniture, accounts growing out of the business, notes, &c.

The assignment tended to prove that Lewis did not participate in the proceeds of the business; that the accounts and notes were in the name of Sweat, and that Sweat controlled the business and disposed of the property to pay the plaintiff, and not upon what plaintiff claims as a partnership debt. Richardson v. R. & W. Turnpike Co., 6 Vt. R. 496. 1 Starkie's Ev. 17. 2 Stark. 380.

It cannot be objected that it did not prove the whole issue.

The opinion of the court was delivered by

BENNETT, J.-The question litigated at the trial was in relation to the existence of a partnership between the defendants in the business of innkeepers, and the purchase and sale of cattle. No partnership contract was given in evidence, but it was attempted to be established against Lewis by his admissions and against the two by the course and circumstances attending their business.

Both of the defendants lived in the tavern-house, and, it was contended, were in the joint use of the property connected with the tavern house. The assignment by Sweat to Callender of the tavern furniture and tavern accounts, for the payment of debts which he owed, would tend to rebut the evidence on the other side, and to show that the defendants had not been in the joint receipt of the income of the tavern, though they might have been apparently carrying it on together, and was properly admitted in evidence.

The judgment of the county court is affirmed.

January, 1842.

Callender

v.

Sweat et al.

ADDISON, January, 1842.

Tilden

V.

Brown.

JOSEPH F. TILDEN V. BENJAMIN B. BROWN.

One may maintain trover for a check, which is his property, although not made payable to him, or negotiated.

If one purchase of a mail contractor his contract and stage property, with the express stipulation that the postmaster, when the quarterly checks are sent, shall deliver them to the vendee, and the vendor, notwithstanding this, gets possession of one of them and converts it to his own use, he is liable in trover.

Such order given to the postmaster in writing, by the vendor, is a power coupled with an interest, and not countermandable.

THIS was an action of trespass on the case, counting, in the first count, in trover, and, in the second, on the special circumstances of the case. Plea, not guilty; issue to the court.

On the trial, in the county court, the plaintiff introduced evidence proving the following facts. Previous to December 1st, 1837, he purchased of the defendant all the stage property owned by the defendant on the line between Middlebury and Royalton, and, on the 1st day of December, 1837, took a written assignment of a contract to carry the mail, which had been originally made by the defendant with the government; but no transfer to plaintiff of said contract, by the post-office department, had been made at the time of defendant's taking the draft in question. After the first of December the defendant ceased to have any interest in said line of stages, or the mail contract, but the mail was thereafter carried by the plaintiff. Before closing the contract and taking the assignment, the plaintiff required, as security to to him, that the drafts, and all communications from the postoffice department, thereafter to be mailed addressed to the defendant, should be retained by the post-master at Middlebury and delivered to plaintiff, or sent to him at Rochester, where he resided, and that the defendant should not receive nor take any thing, except the draft for the quarter that would end December 31st, 1837. The defendant thereupon executed and delivered to the plaintiff a paper, directed to the postmaster at Middlebury, stating that he had sold his interest in said mail contract to the plaintiff, and directing said postmaster to forward to the plaintiff at Rochester, Vt. all communications from the post-office department to the defendant,

except those for the quarter ending Dec. 31, 1837. The plaintiff notified the post-master at Middlebury of the contract, and sent or showed him the paper so executed by the defendant. The defendant agreed that the contract should be transferred to plaintiff, by the post-office department, and that an application should be made for that purpose.

A draft from the Post Master General, on N. Green, was sent to Middlebury post-office, for the quarter ending April 30, 1838, of the amount and description mentioned in the declaration, which draft was payable to the defendant or his order, and which he negotiated at the Bank of Middlebury on the 30th day of May, 1838. Afterwards he refused to deliver the draft or the money to the plaintiff, assigning as a reason that he had claims on the stage company across the mountain. After the plaintiff demanded the draft, or the money, as aforesaid, the defendant directed the post-master at Middlebury not to deliver any further communications from the Post Master General or the post-office department, to the plaintiff. Some drafts of the same description, and payable in the same manner to the defendant or order, were forwarded by the post-master at Middlebury to the plaintiff and were by him negotiable by signing the drafts as the defendant's agent. The defendant was embarrassed in his circumstances, and not responsible at the time of receiving the draft in question. Upon these facts the county court decided that the plaintiff could not recover in this action, on either count, and rendered judgment for the defendant to recover his costs, and the plaintiff excepted to the decision.

C. Linsley, argued for the plaintiff, and cited Chitty on Cont. 110, 130, 131; Shep. Touch. 224; 2 Stark. Ev. 6 Am. Ed. note, 835, 840; 35 Com. L. R. 54; Id. 218; Robinson v. U. S. Ins. Co., 1 Johns. 592; 17 Com. L. R. 486; Carter v. Jarvis, 9 Johns. 143; Kingman v. Pierce, 17 Mass. 247; Schermerhorn v. Van Volkenbugh, 11 Johns. 529; 2 N. H. Rep. 66; Roberts v. Wyatt, 2 Taunt. 268; Taylor v. Plumer, 3 M. & S. 562; Murray, et al. v. Burling, 10 Johns. 172; Jackson v. Anderson, 4 Taunt. 24; v. Hayes, 4 Term R. 260; Ostrander v. Brown, 15 Johns. 39; v. Barclay, 2 B. & A. 702; Lockwood v. Bull, 1 Cowen, 322; Buck v. Kent, 3 Vt. R.

ADDISON, January, 1842.

Tilden,

v.

Brown.

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