1. The sale under which they claimed the property was fair, valid, and bona fide, and not made with a view to hinder, delay, or defraud creditors. The jury had these points fairly submitted to them, under the charges of the Court, and their finding is conclusive.
2. The testimony of Stewart, the sole witness for appellant, should have been excluded by the Court, on the ground of interest.
First, because he was the principal attaching creditor.
Second, because he had indemnified the Sheriff to seize the property.
In reply to these objections, defendant tried to prove, by Stewart himself, that although he had attached the goods, that he only did so as a commission-merchant, and as agent of purchaser, and that the Sheriff had released him from the bond of indemnity.
But no such release was produced, or proven, on the trial, and it could not be proven by parol, by one whose competency was challenged on the ground of interest.
In his answer to the last cross-interrogatory by plaintiff, he distinctly admitted that the facts sworn to by him in his affidavit to attach, were true.
He should have been excluded on both grounds.
But if he only acted as a factor, or commission merchant, he still had a disqualifying interest. (5 Cal. 466, Shaw v. Davis .)
3. If the evidence of Stewart is rejected, the defendant is left without any defense whatever. The releases were proven only by him. He was the sole witness for defendant. If he be excluded, of course the releases fall with the testimony.
4. Neither of the releases contained in the record can be of the least benefit or advantage to defendant.
There are several objections fatal to them both.
The objections to this release are:
1. That it was withdrawn by defendant, under direction of the Court, before he was allowed to set up or offer in evidence any other or different release.
2. It amounts to nothing, if it is considered properly in evidence, because it is only a release of all causes of actions accruing individually to Glazer, and does not extend to a joint action he had with Perlberg. It therefore cannot affect this case. And this point was expressly decided by the Court in the case of Johnson v. Wright , 6 Cal. 373. See, also, on this point the following cases: Redding R. R. Co. v. Johnson, 7 Watts and S. 317; Atwood v. Munnings, 14 Eng. C. L. Rep. 131.
The objections to the second release are manifold:
1. No such release is pleaded.
The amended answer sets up a release, dated April 29th, 1854, made by the partnership firm of A. Perlberg & Co.
The release offered in evidence is signed A. Perlberg and C. Glazer, and is dated May 10th, 1854. There is, therefore, a fatal variance.
2. Glazer had no authority to sign the name of Perlberg to this release. The plaintiffs were joint owners.
JUDGES: Burnett, J., delivered the opinion of the Court. Field, J., concurring.
OPINION
BURNETT, Judge
1. It is insisted, by the learned counsel of plaintiffs, that the errors alleged by defendant cannot be reached, as they all depend upon the testimony of Stewart, a witness for defendant, and who was improperly admitted to testify, against the objection of plaintiffs. This position is correct, if it be true that Stewart was an incompetent witness for defendant. The witness was examined on his voir dire, and stated in substance that he was one of the attaching creditors; that the suit was brought in his name, though the goods sold by him to the vendors of plaintiffs were not his property, he being only a commission merchant; and that he gave a bond of indemnity to the defendant, Gorham, which was released by defendant before the trial.
Stewart, not having been made a party to the suit, and having been released by Gorham, was a competent witness, he being neither a party to the suit or interested in its result. (Lucas, Turner & Co v. Paine & Dewey , 7 Cal. 92.) Whatever amount Gorham might have had to pay, he could have had no recourse upon Stewart. And if plaintiffs had been unable to enforce the collection of the judgment against Gorham, and had then sued Stewart, the result in Gorham's case could not have affected the suit against Stewart, he not being responsible to Gorham even for costs. The fact that the witness did not produce the release of Gorham to him, was no objection to the admission of his testimony, as the plaintiffs did not require its production at the time. The objection to the competency of the witness was general, and not specific, and could not, therefore, embrace this special ground. Had the plaintiffs required the production of the best evidence of the fact of release, then the witness might have produced the instrument.
2. It is also insisted, by the counsel of plaintiffs, that the third release of plaintiffs to Gorham and the attachment creditors, should not have been admitted; and, if that be excluded, the errors assigned by defendant cannot be reached.
We think the third release was properly admitted. And the subsequent stipulation, substituting the second for the third release, waived the variance between the second release and the answer.
3. We come now to consider the errors assigned by the defendant.
The Court gave this instruction to the jury: " That if a partnership existed between Perlberg and Glazer, in the purchase of the goods, this fact did not authorize Glazer to execute the said release in the name of Perlberg."
The release was executed in the names of A. Perlberg and C. Glazer, after this suit was instituted, and was under seal. The bill of sale of the goods was made to A. Perlberg and C. Glazer, and this suit was brought in their names. In Coll. on Part., it is laid down that " the general rule of law, that one partner cannot bind his copartner by deed, though applicable, with the exceptions which have been mentioned, to every deed in the nature of a grant, yet does not extend to releases ." (§ 468.) And in section six hundred and thirty-six, it is said, " that if two partners commence an action, one may release the subject-matter of it." See, also, Pierson v. Hooker, (3 Johns. 68,) Salmon v. Davis, (4 Binn. 475,) and Emerson v. Knower, (8 Pick. 66).
We think the Court below erred in giving this instruction.
4. The next error assigned by defendant is, that the Court charged the jury, " that if they believed, from the evidence, that Stewart procured the releases from Glazer fraudulently, and with the intent to defraud Perlberg, the releases were void."
It is insisted, by the counsel of the defendant, that there was no evidence upon which to base this instruction. The evidence was slight, but still there was some evidence, and this was enough to justify giving the instruction.
Judgment reversed, and cause remanded for further proceedings.
CONCUR
FIELD
Field, J. I concur in the judgment.