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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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causes of demurrer appearing in the said bill of complaint, this
defendant doth demur to the said bill, and to all the matters and
things therein contained; and prays the judgment of this honora-
ble court, whether she shall be compelled to make any further or
other answer to the said bill," &c.

The cause now came before the court upon the demurrer.

Mr. R. E. Evans and Mr. McCall, for the defendant.

The act of the 16th of June 1836, gives jurisdiction to this
court in the case of equitable discovery only where there is an
issue depending; which is not the case here. Relief will be given
only where an action is pending, commenced, or contemplated.
Hare on Discovery 110; Story's Eq. Plead., 321, p. 261; Shaw
v. Shaw, 12 Price 163. The complainant don't even aver posi-
tively that the proper.ty belongs to him ; which is necessary. Story
Eq. Ple"ad., 257, p. 214. The powers of chancery are over trus-
tees. Equity does not aid them in fulfilling their trusts. Jeremy's
Equity 466. If the complainant is not entitled to relief, he is not
entitled to a discovery. Armitage v. Wadsworth, 1 Madd. Ch. Rep.
189 ; Crow v. Tyrrell, 3 Id. 179.



1840.] OF PENNSYLVANIA. 144

[Mange v. Guenat.]

Mr. Earle, contra.

The complainant is without remedy if this equitable relief is
denied to him, since he cannot bring replevin, being unabl<- suffi-
ciently to describe the papers. This is a bill for relief, < <\ the
discovery is in-cidental to it. Jeremy's Eq. 262, 466. T! < case
comes within the 13th section of the act of the 16th of June 1836.
In a bill for discovery and relief an affidavit that the plain; <1 had
not the papers, is not necessary. Story's Eq. Plead. 475: Hare
on Discovery 7, &c.

The opinion of the court was delivered by

SERGEANT, J. This is a bill for discovery of deeds and other
muniments of title relating to lands, &c., to enable the plaintiff to
inspect them, and to compel the delivery over of the deeds and
other papers to the complainant ; to which there is a demurrer.
The question is, whether the bill is sustainable on either of the
points of view it presents. As a bill for relief by ordering the
defendant to deliver up the deeds and papers, it is not sustainable,
because the complainant has not placed himself by his bill in the
position of one entitled to relief of this kind. To have these deeds
and papers delivered over to him, the plaintiff must show that he
has a legal title to the deeds and papers as against the defendant.
But this he *does not do. Non constat but that the defend- r*ijc
ant has a better title to them than the complainant. The "-
deeds and papers belong ordinarily to him who is in possession of
the land ; and if the defendant is in possession, it would be asking
us to take them from him who has the right, to give them to
another. In Crow v. Tyrrell, 3 Madd. Ch. 182, the rule is thus
stated. " The possession of title deeds is incidental to the posses-
sion of the estate, but cannot be recovered with the estate at law.
This court, therefore, will give the title deeds to him who has at
law recovered the possession of the estate; but its jurisdiction in
this respect is confined to the possession of the estate. If, then,
the plaintiff recover the possession of the estate at law, then, and
not till then, he may come here for the possession of the title deeds."
To the same effect is Armitage y. Wadsworth, 1 Madd. Ch. 193.

The other prayer, that the defendant may place the deeds, &c.,
in the hands of the prothonotary for inspection, is incidental to the
discovery. Crow v. Tyrrell, 2 Madd. Ch. 408. If the discovery
can be had, this may follow, but without the discovery it cannot be
had.

It is plain, however, that the great object of the plaintiff in this
bill, is to obtain a discovery of certain deeds and papers relating to
the estate of the assignor: and if this court had possessed juris-
diction when this bill was filed, it is possible that the plaintiff has
an equity to compel such discovery, provided he presented his case

6 WUAIITON 10



145 SUPREME COURT [Dec. Term,

[Mange . Guenat.]

with the proper averments. But the jurisdiction of this court,
when the present bill was filed, depended entirely on the act of the
16th of June 1836, sec. 18, by which the jurisdiction of this court,
and of the Common Pleas, is confined to " the discovery of facts
material to a just determination of issues and other questions aris-
ing or depending in the said courts." Now this bill does not aver
that any issue is depending between the plaintiff and the defendant
or any person, in this court, or in any court, or that any question
has arisen or is depending therein. It follows, of course, that the
court had no jurisdiction of this bill as a bill of discovery, or of
anything merely incidental thereto.

By the act of the 18th of June 1840, the equity jurisdiction of
the Supreme Court and Court of Common Pleas, within the city
and county of Philadelphia, is extended to all cases arising in the
said city and county, over which the courts of chancery entertain
jurisdiction on the grounds of fraud, accident, mistake, or account.
This act may perhaps a-fford a full remedy in cases of discovery :
but it is certain that under the prior law it was restricted to par-
ticular cases.

It has not seemed necessary to decide what the rule is as to a
demurrer to a bill seeking discovery and relief: and whether the
English rule applies, that it is sufficient to show that the plaintiff
is not entitled to the relief which he prays ; because in the present
*1461 case * we tn ink tne Pontiff has not made out a case either
-1 of relief or discovery.

Demurrer allowed.

Cited by Counsel, 1 Parsons 376.

|| By act 10 Apr. 1848, I 4, P. L. 449, and 14 Feb. 1857, | 1, P. L. 39, the
Supreme Court and Common Pleas were given "the same jurisdiction and
powers in all suits now pending or hereafter to be brought, for the discovery
of facts that are now possessed by courts of chancery:" Purd. (ed. 1873)
592, pi. 6, 8. An allegation that discovery is sought in aid of a judicial
proceeding, pending or contemplated, is essential to a bill for discovery.
Collom v. Francis, 1 Pars. Eq. 527 ; the facts set forth must be such, that if
true, the plaintiff can maintain an action : Ibid.||



1840.] OF PENNSYLVANIA. 146



[PHILADELPHIA, JANUARY 16, 1841.]

Churchman against Smith.

IN ERROR.

1. A book of entries manifestly erased and altered in a material point,
cannot be considered as entitled to go to the jury as a book of original entries,
and ought to be rejected by the court, unless the party offering it gives an
explanation which does away with the presumption arising from its face. 1

2. What circumstances will constitute a partnership as respects third per-
sons.

ERROR to the Common Pleas of Delaware County, to remove the
record of an action on the case brought by Peter Smith against
Robert Churchman and Jonathan Roberts.

The plaintiff declared in assumpsit for goods, &c., sold and de-
livered to the defendants, as co-partners in trade, under the firm
of Jonathan Roberts. The defendants pleaded non assumpsit, and
payment, with leave, &c.

The cause came on for trial before Bell, President, on the 27th
of August 1839, when the plaintiff offered in evidence his book of
original entries, containing certain charges against the defendants,
accompanied with the testimony of witnesses in respect to the hand-
writing in the book, and the delivery of the goods. The book was
admitted in evidence, after objection on the part of the defendants ;
and exception was taken.

A great deal of testimony was also given in respect to an alleged
partnership between the defendants, which it is not material to state
here.

*The learned judge charged the jury, in substance as
follows :

" This is an action of assumpsit to recover the value of certain
powder alleged to have been sold and delivered by the plaintiff,
Peter Smith, to the defendants, Robert Churchman and Jonathan
Roberts. The defendants say the powder was not sold to them ;
and unless, under the evidence, you should be of opinion that such
sale was made to the defendants jointly, the plaintiff cannot recover
in this suit; because whatever may be the justice of the claim
against one of the defendants, unless it extends to and embraces the

1 || The use of books of entry as evidence in our courts, arose from neces-
sity, or in analogy to the civil law. Our courts are averse to extending the
practice. Infra *151.

If a clerk acts also as carter and delivers goods, and on his return makes
entries in a book from memoranda, such book, if otherwise unobjectionable,
Would be evidence.

If a party wishes a charge on any point, it should be presented to the
court. Infra *153.||



147 SUPREME COURT [Dec. Term,

[Churchman v. Smith.]

other, he does not make out the allegation of his declaration, which
asserts a contract made with both. In order, however, to create
such joint liability, it is not incumbent on the plaintiff to show a
contract expressly made with both defendants or a delivery to both ;
for joint liability may exist, although the arrangement for the sale
and delivery of the articles was made with and to but one of the
defendants ; if they stood in a relation, which, in law, constitutes
one the agent of the other, as to all subjects within the object of
their association ; in other words, if, at the time of the sale and
delivery of the powder in question, the defendants were copartners
in the prosecution of a business which required the use of powder,
and such powder was purchased by one, even without the knowl-
edge or assent of the other, both will be bound as fully as if the
contract of purchase and sale were made by and with both. This,
then, is the great question in the cause. Were the defendants in
the years 1831, '32, and '33, copartners for the purpose of quarry-
ing and making profit of the stone of the Christiana quarry ? If
they were, and you believe the plaintiff's book of original entries,
and the other evidence of the delivery of the articles sold, the plain-
tiff is entitled to recover. If they were not partners, but, as is
contended by Churchman, stood in the relation of landloi'd and
tenant, the plaintiff is not entitled to your verdict. In order to
determine this question correctly, it is important to ascertain what
constitutes partnership, what are some of its characteristics, and
how, in the absence of written evidence, the fact of its existence is
usually ascertained. Partnership is a contract by which two or
more persons join in common, money, goods, labor and services, for
carrying on some lawful commerce, work or business, that they
may share among them all the gain or loss thereby arising. So it
may also be constituted by joining real estate owned by one, with
money or labor, or both, contributed by another, if the object be to
carry on a lawful commerce or business with the view to share the
loss or gain. Thus, an agreement that one shall provide a shop,
loom and tackle, the other to provide the labor, and to share the
profit and loss between them, constitutes a partnership. 2 Watts
342. So if one agree to render service in a store as clerk, to be
compensated by a participation of profits, he is a partner as re-
gards creditors. 6 S. & R. 259. The leading characteristic of
*14.T *P ar tnership is participation in profit and loss : if such par-
ticipation exist, no matter what is the nature or amount of
the property or thing contributed by the persons associated, the law
intends a partnership, attended by all the consequences of such
relation. Before I proceed to consider the usual proof of such a
connection, it may be profitable to inform you as to some general
principles which govern the liabilities of partners. (Here the
court pointed out the difference between ostensible and dormant



1840.] OF PENNSYLVANIA.

[Churchman . Smith.]

partners, the extent and continuation of their liabilities respectively,
and the general authority of one partner to bind his fellows by con-
tracts in respect to the business of the firm. Let us now inquire
how partnership may be proved where the contract is not in writ-
ing. Where suit is brought against partners, less evidence of the
existence of partnership is required than where the action is
brought by persons as partners. In the former case it is sufficient
to make it out prima facie by proof of such facts as reasonably
induce a belief: in the. latter proof more conclusive is required ;
and the reason is, that in the one instance the plaintiff cannot be
supposed to have the means of making himself acquainted with all
the evidence of the defendants' connection ; in the other, such evi-
dence must be within the knowledge of the plaintiffs. Where,
therefore, the partners are defendants, proof of the acts, conduct,
and declarations of the respective partners in conducting the busi-
ness of the firm is usually relied on to establish prima facie part-
nership. Whether such acts, conduct and declarations be sufficient
in themselves for that purpose is purely a question of fact for the
determination of the jury. It is sufficient for me to instruct you
that such proof is competent, and from it the jury may legitimately
deduce the fact. Declarations, however, by one partner that others
were connected with him, are not sufficient, standing alone, to
charge such others as partners, but such declarations may be con-
sidered in connection with the acts and declarations of the others,
tending in any degree to show partnership. Briefly, declarations
or confessions of one, independently of other facts, are not evidence
against another : taken in connection with other declarations,
and acts, proceeding from such others, they are evidence. On the
other hand, the conduct of the alleged partners, in relation to the
business of the alleged partnership, may properly be considered by
the jury in disaffirmance of the allegation of partnership. (Here
the court stated the facts of the case.) But apart from all the
other facts of the case, we are to consider the effect of Mr. Church-
man's declarations made to Messrs. Maddock and McCormick in
1831 and 1832, and the declarations of his counsel before the arbi-
trators, and here, that by the arrangements of the parties Mr.
Churchman was to receive one-half of the profits or proceeds. I
have already said, and the position is not disputed by the defend-
ants' counsel, that a participant in the profit and loss of a concern,
no matter what may be the arrangements between the parties, is as
to third persons a partner, and as such liable *for the debts r*-|4q
of the firm. But it is said there must be a participation in ^
the losses as well as the profits to make a partnership. This is
true ; but the very idea of profit includes the idea of loss ; for pro-
fit is that which remains after losses are paid. It is not necessary
to show that any losses were actually sustained. If the party from



149 SUPREME COURT [Dee. Term,

[Churchman v. Smith.]

the nature of the arrangement was liable to suffer loss, the rule is
satisfied. Now by the arrangement between Messrs. Roberts &
Churchman, what was it the latter was entitled to receive ? This
is exclusively for your decision ; but it is submitted that the evi-
dence tends to prove that Mr. Churchman was to receive one-half
of the profits remaining after payment of losses. In 1832 he said
he had netted, in 1831, $1200. In 1833 he said they, Roberts and
himself, had each netted $1200 ; thus putting himself on the same
footing with Roberts. The word " netted" means, among business
men, the sum realized after payment of all losses. It seems to me,
therefore, that it is not correct to say that Mr. Churchman was to
receive a moiety of the gross proceeds as compensation for the use
of his quarry. On this point of the case a distinction exists of
which it is proper you should be instructed ; it is this : If a man
stipulates that as a reward for his labor, or perhaps as a compensa-
tion for the use of his property, he shall have, not a specific interest
in the business, but, a given sum of money, even in proportion to
a given quantum of the profits, that will not make him a partner ;
but if he agrees for a part of the profits, as such, he is as to third
persons a partner. In illustration of this distinction the following
case is given. If the proprietor of a lighter agree with the person
who worked the lighter, that in consideration of working her, the
latter should receive one-half of the gross earnings for his labor, it
is ruled that such agreement does not constitute a partnership, it
being merely a mode of paying wages for labor ; but if the agree-
ment be that the two were to share the profits arising from the
working of the latter, such agreement would constitute partner-
ship.

But it is further alleged that the relation of landlord and tenant
existed between these defendants, and that the amount receivable
by Mr. Churchman is to be considered as rent. If such relation
did exist, the defendants cannot be made liable as partners. There
is no proof that in 1831 and 1832, rent was to be paid by Roberts
to Churchman. But although no such proof exists, it is insisted
that the mode in which Roberts occupied the quarry was analogous
to a renting of a farm on shares. I confess 1 can see no resem-
blance between the two cases. That a man may rent his land on
shares, as it is called, without becoming a partner with his tenant,
does not admit of doubt ; and while the owner of the land keeps
himself within the practice which governs such a letting, he is safe
from the consequences of partnership ; that is, while the landlord
is content to receive from the tenant any portion of the gross produce
of the farm, such return is to be considered as rent ; but the moment
*1*)01 ^ e becomes * a P art y to a contract, founded on a communion of
* profit and loss, arising out of the sale in gross of the produce
of the land, each party to receive a portion of the profits and to bear



1840.] OF PENNSYLVANIA. 150

[Churchman v. Smith.]

a portion of the loss, he puts himself in the position of partner in
respect to the subject from which profit is to be made or loss
incurred. This does not interfere with the undoubted right of the
landlord to authorize the tenant to convert into money his propor-
tion of the proceeds : in such case the tenant is the mere agent of
the landlord. In the instance before us, if the contract between
Roberts and Churchman was that Mr. Churchman was to be paid
for the use of the quarry, by a certain portion of the stone raised,
or even by a certain sum in proportion to the stone quarried, or the
value thereof, Mr. Churchman cannot be held as a partner, and the
plaintiff is not entitled to recover. But if the agreement was, that
after payment of losses and expenses, the profits were to be divided
between Roberts and Churchman indefinitely, then, as to third per-
sons, they are to be considered as partners, in respect to the busi-
ness of the quarry at Christiana, and as such liable to the payment
of all debts contracted in carrying on the business of the quarry.
It does not appear, except from some statements made by Mr.
Churchman, as to the renting in 1833, but that the parties carried on
the quarry in this last year upon the understanding and agreement
of the prior years. Be this as it may, if a partnership existed in 1831
and 1832, or at any time during those years, while the plaintiff
furnished the power, which was afterwards dissolved, it is incum-
bent on the defendants to prove notice of such dissolution to the
plaintiff. No such notice is alleged, and consequently the defend-
ants, if they were partners in 1831 or 1832, are liable for powder
delivered by the plaintiff in 1833. Although the book of original
entries was admitted in evidence to the jury, yet if you think the
book was fraudulently added to or altered, with a view to charge
Churchman, you ought to throw it altogether aside ; and in such
case you should found your verdict upon such testimony as is to be
found in the case, independently of the book. A book of original
entries is evidence of goods sold and delivered: the jury are not
bound by the prices set down in the book; but it is prima facie
evidence of price. The receipts of August 24th 1832, and May
23d 1833, though in full, are open to explanation, and cannot have
the effect of barring the plaintiff. 1 In the absence of explanation,
the receipts will bar the plaintiff's recovery in this action."

The defendants' counsel excepted to the charge, and the cause
was removed to this court ; and numerous errors were assigned
both in respect to the admission of evidence and the charge
of the court.

Mr. S. F. Reed, for the plaintiffs in error, cited Rodman v.
Hoopes, 1 Dall. 85; Prevost v. Gratz, 1 Peters C. C. Rep. 369;

1 See 1 W. & S. 324 ; 2 Jones 236; 1 Harris 49.



151 SUPREME COURT [Dec. Term,

[Churchman . Smith.]

*.,.,-, *Curren t>. Crawford, 4 S.&R. 6; Marshall v. Gougler, 10 *Id.
1>1 J 168 ; Babb v. Clemson, Id. 424 ; Vicary v. Moore, 2 Watts
451 ; Fairchild v. Dennisou, 3 Id. 260.

Mr. Sterigere and Mr. Edwards, contra, cited Gow on Part-
nership 5, 14, &c. ; Purviance v. McClintee, 6 S. & R. 259 ;
Gregg v. Halfraoon, 2 Watts 342 ; Heffelfinger v. Shutz, 16 S.
& R. 44 ; Vance v. Faires, 2 Dall. 217 ; s. c. 1 Yeates 321 ;
Ingraham v. Bockius, 9 S. & R. 285; Sterret v. Bull, 1 Binn.
234 ; Jones v. Long, 3 Watts 325 ; Waugh v. Carver, 2 Hen.
Blackst. 235; 1 Smith's Leading Cases 491, and the note thereto.

Mr. Dallas replied.

The opinion of the court was delivered by

SERGEANT, J. The errors in this case have been needlessly
multiplied and subdivided into a great variety of heads, calculated
rather to confuse and perplex the case than to aid the investigation
of it. On the argument here they have been very properly reduced
to a few points, which embrace all that is material.

Books of entry, supported by the oath of the plaintiff himself,
are a peculiar species of evidence, not now admitted by the English
law, but introduced into usage in this country at an early period,
either from the necessity of the case, as we find it stated in our
books, or in analogy to the civil law, by which a man's own books
of account, with the suppletory oath of the merchant, amounts to
full proof. The provisions of the civil law on this subject are
explained in 3 Bl. Com. 368 and 370; and the statute 7 Jac. 1,
c. 12, in its preamble and enactments, shows that at one time in
England, books of entries were evidence at common law. This
statute confines this species of proof to transactions that have hap-
pened within one year before action brought, unless between mer-
chant and tradesman in the usual intercourse of trade. It was
decided by Holt, C. J., notwithstanding this statute that a shop
book was not evidence of itself within the year. Pitman v. Maddox,
Salk. 690.

But whatever may be the origin of the practice here, it has
become firmly fixed and settled, as a general rule, that books of
entries are evidence to prove goods sold and delivered, or work
done. It has, however, always been kept by the courts within pre-
scribed bounds, and various modifications and restrictions imposed,
to guard against the abuses which the ex parte acts of a person
interested might otherwise lead to. Of these the courts have them-
selves been the judges before they would permit the book to go to
a jury, and they have considered it as a species of evidence which
ought not to be extended beyond its ancient limits, and that a strict



1840.] OF PENNSYLVANIA. 151

[Churchman v. Smith.]

hand is to be kept over it. Thompson v. McKelvy, 13 S. & R.
127. In that case, scraps of paper, containing some scribbling or
figuring on *them, besides the account of sales of the goods, i-.,,, _~
were rejected. So, where they are not made at or near the
time of the transaction, they are inadmissible. Curren v. Craw-
ford, 4 S. & 5. They are not admissible to show a collateral fact,
Juniata Bank v. Brown, 5 S. & R. 226. These and various other
regulations have, from time to time, as the points' occurred, been
adjudged as necessary to keep this sort of evidence within reason-
able bounds.

In the case before us, the plaintiffs book of entries has been
shown to us on the argument here, and it is obvious that there
has been an erasure arid alteration of the account against the
defendants, and that in a material part; and it is left upon the



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 17 of 75)