Argued June 9, 1874
Decided September 22, 1874
Esek Cowen for the appellant.
Samuel Hand for the respondent.
Two rulings upon evidence made upon the trial are, in the opinion of the General Term, stated as the grounds upon which a new trial was granted in this case. If either of these rulings was erroneous and material, the new trial was properly granted, and the order of the General Term must be sustained, and reference to any of the numerous exceptions to other rulings becomes unnecessary.
The appellant, McManus, was sought to be charged as a copartner in the firm of Tighe Robinson, in the business of brewing and distilling. He denied being a partner in the firm. The evidence to connect him with it in that relation was circumstantial. There was no direct proof of the alleged partnership. The circumstances mainly relied upon by the plaintiff were, that McManus purchased and owned the brewery and apparatus, with which the business of the firm was carried on; that he furnished the firm with capital, and also attended to its financial business, receiving the proceeds of sales, and paying the liabilities. Evidence was also introduced, on the part of the plaintiff, for the purpose of showing declarations of McManus, to the effect that he was interested in the concern as a partner. These were controverted.
McManus being sworn, and testifying in his own behalf, denied being a partner, or interested in the profits of the concern. He admitted his ownership of the brewery, etc., and his intervention in the conduct of its affairs, but sought to explain his action by showing that Tighe and Grattan, two of the members of the firm, were relatives of his, and that in purchasing the brewery and making advances to the concern his sole motive was to aid his relatives. That all he received was a specified sum per annum for the use of his property. The evidence as to his motive was excluded by the court. We concur with the General Term in the opinion that it ought to have been allowed to go to the jury. Acts on the part of McManus had been proved, calculated to show that he was interested in the business. These acts, in the absence of any explanation of their motive, tended not only to sustain the plaintiff's allegation of interest, but to corroborate the evidence as to oral declarations of McManus, touching his interest in the concern. In the absence of any such motive as he endeavored to prove, his conduct in buying the property, furnishing capital, and aiding the firm in the management of its business, would naturally lead to the inference that he was interested in the business, and acting for his own advantage. This inference he had a right to rebut, by showing that he was actuated by a motive which rendered his conduct consistent with an absence of any pecuniary interest of his own in the profits of the business. If he was a partner, it was of course immaterial what motive caused him to become such. But the very question was, whether he was a partner or not. As bearing upon this question, certain acts were proved, which would, under ordinary circumstances, indicate that he was interested in the business. We think that he had the right to explain these acts by showing that he did them for the purpose of aiding his relatives, and that, therefore, they were not inconsistent with his allegation that he had no interest. The existence of this motive was a fact which the defendant had a right to lay before the jury, in order that it might be considered by them in drawing inferences from his actions. Many acts were proven which could not have influenced the plaintiff to give the credit, but which bore upon the question of actual partnership, and as to those, we think the evidence clearly admissible.
The exclusion of this evidence was error, sufficient to justify the order granting a new trial. The order must, therefore, be affirmed, and judgment absolute rendered for the defendant McManus, with costs.
Order affirmed, and judgment accordingly.