Butte Hardware Co. v. Wallace.

through estoppel, when the latter has no notice or knowledge of them, is too well established, too well grounded in reason, and should be too elementary, to require, or even warrant, the citation of authorities in support of the position; and we can discover no ground of distinction or exception as applicable here.

These remarks will apply with full force to other assignments of error, based upon the exclusion of declarations of King, made to divers other persons under similar circumstances, in the like absence and without the knowledge or authority of the defendant. Also to the declarations of Walter King, son of James King, a clerk and bookkeeper at the mine.

To show that the plaintiff was the legal owner and the holder of the note mentioned in the eighth count of its com. plaint, its counsel asked Mr. Largey, who was the superintendent and general manager of the plaintiff, the following question, as appears in his deposition :-Question. "State whether there is any endorsement on the P. A. Largey note?" Answer. "It is simply an endorsement to The Butte Hardware Company by myself. That is my signature."

This note as exhibited in evidence was endorsed simply "P. A. Largey." On cross-examination the witness stated that he made such endorsement before the commencement of this suit; that the plaintiff took it and gave him credit for the amount; and that whether in fact credited for it on the books of the company he had made no examination to ascertain and did not know. On inspection of the books no credit could be found for the note, and it was agreed that no such credit appeared on the books. There was no other evidence to show that this note was owned or holden by the plaintiff. The plaintiff's counsel objected to the agreed fact that there was no such credit being offered in evidence, insisting that it was immaterial whether there had been any credit to Mr. Largey; that the legal title to the note could be and was transferred by indorsement and delivery; and that the fact that there was no credit to Largey, or that

Butte Hardware Co. v. Wallace.

nothing was paid or to be paid, for it, would not affect the plaintiff's title thereto. The court permitted this evidence to go to the jury, limiting its effect, by instructions, to such bearing as it might have upon the question whether there had been in fact any delivery of the note from Mr. Largey, the payee, to the plaintiff, as represented by Largey, as its agent and manager, saying that since, in either case, he would have possession of it, the circumstances were peculiar, that as there would be no visible change of possession the absence of credit was a fact which the jury might consider in determining whether there had been an actual one, and in which capacity, individual or representative, such possession was held. Although, if this ruling had been incorrect, it appears manifest that the plaintiff could not have been harmed by it, since the verdict for the defendant upon all the other counts demonstrates that the jury found that King had no authority to make Wallace liable upon his contracts, which the record states "was the only substantial controversy throughout the entire case," we further think the ruling unexceptionable. The court fully sanctioned the plaintiff's claim that the title to a negotiable note, indorsed as this one was, would pass by such indorsement and by delivery, and it was only as bearing upon the question whether there had been such delivery that the evidence was permitted to go to the jury.

For the purpose of showing that the business carried on at the time under the direction of King was conducted by and in the name of the corporation, and also that the plaintiff knew how that business was carried on, and gave credit to the Belle corporation and not to the partnership, the defendant offered in evidence certain printed bill-heads, letter-heads, return envelopes, time tickets, and printed forms for orders, copies of which were annexed to the record, with proof that they were the same used in that business, and that orders headed and printed as they were were sent from the mine to the plaintiff, from time to time, beginning as early as January, 1883, and continuing until May, 1885, and also proof that the goods mentioned in the plaintiff's

Butte Hardware Co. v. Wallace.

bill of particulars, and for which this suit was brought, were forwarded by the plaintiff upon orders having the printed heading. The plaintiff objected to this evidence, but the court admitted it.

Although this evidence seems so clearly relevant that we should have been disposed to dismiss the subject without discussion, yet to the plaintiff's claim, "that if these were admissible for the purpose of showing that the business was carried on in the name of the Belle Company, one of the purposes for which it was introduced, it is difficult to see how declarations made by King that the business was carried on by Wallace & King could be excluded," we should perhaps reply, that though it seems hardly fair to separate and detach that purpose from the other related ones for which the evidence was offered, yet so detached there appears but little similitude between evidence that a business was in fact and openly and notoriously carried on in a certain way, under the direction of King, and the secret and uncommunicated declaration of King, not, as the plaintiff's counsel find it necessary to put it, "that the business was carried on by Wallace & King," but, as the record states it, "that he and Wallace were partners." The one is direct, and the best evidence of a relevant fact, offered by the defendant to meet and rebut that portion of the plaintiff's case wherein it is sought to hold the defendant as a partner by implication and estoppel; the other was evidently offered by the plaintiff in chief, to prove the existence of an actual partnership; but even if offered for the other purposes for which the plaintiff now claims it to have been admissible, there is nothing analogous between the two.

The remaining twenty-six assignments, except the thirtythird, all relate to the charge of the court to the jury. The charge is very lengthy, and we have examined it with much care, with special reference to each of these assignments, and we feel constrained to say that not only does it appear to us correct, clear, and well adapted to direct the jury to a full apprehension and right determination of the issues involved, but that none of the reasons of appeal relating to

Butte Hardware Co. v. Wallace.

the charge present any questions of law which have not already been decided, and fully enunciated in the opinions of this court, in recent and well considered cases. We therefore refrain from a consideration which would simply involve a re-statement of established and declared principles.

There is another ground for declining to consider these reasons of appeal. The difficulties are well-nigh insuperable. Most of them are so largely based upon averments of alleged facts, which nowhere else appear or are suggested in the record, that without such allegations they would lack force and coherence. Indeed, in a degree which we at least trust is without precedent and will remain without imitation, not only are these reasons distended with such allegations, but the briefs and oral arguments on both sides were largely permeated with the same vice. We should be indeed sorry to believe that any decision, conduct or utterance of this court has ever given any counsel warrant to imagine that he might strengthen the presentation of his case, or increase his chances of success, by such departure from the only chart by which we can be guided. And we avail ourselves of this exceptional deviation to express our entire disapproval of such a practice, including also in such disapprobation that which is neither allegation nor argument, but only cavil, and censure of the trial court. It would be unfortunate indeed for the administration of justice and of all concerned therein, if the pathway to ultimate victory could ever be supposed to turn in that direction.

The thirty-third assignment is, that the court erred in refusing to report the evidence introduced on the trial. This the record discloses the court was requested to do, but declined on the ground that it was of opinion that the verdict of the jury was not only not against the weight of the evidence, but clearly and manifestly in accordance therewith. This would seem to furnish a valid ground for such refusal. Its correctness in fact we have no right to review, and see no occasion to doubt.

There is no error in the judgment complained of.

In this opinion the other judges concurred.

Mechanics' & Traders' Bank v. Versailles Woollen Co.

THE MECHANICS' & TRADERS' BANK vs. THE VERSAILLES WOOLLEN COMPANY.

New London Co., May T., 1890. ANDREWS, C. J., CARPENTER, LOOMIS, SEYMOUR and TORRANCE, Js.

Under Gen. Statutes, § 507, which provides for the institution of insolvency proceedings by a creditor against a non-resident debtor owning property in this state, it is not necessary that the creditor should be a resident of this state.

The provision to that effect in the act as originally passed in 1853, was omitted in a revision of the probate laws in 1885, in which this and other sections were consolidated.

That omission must be regarded as intentional, and as removing the limitation of the original act.

[Argued May 28th--decided September 12th, 1890.]

ACTION to recover upon sundry notes endorsed by the defendant company; brought to the Superior Court in New London County, and dismissed by the court (Fenn, J.,) upon a plea to the jurisdiction. Appeal by the plaintiff. The case is stated in the opinion.

C. F. Thayer, (with whom was G. E. Parsons), for the appellant.

F. T. Brown and D. G. Perkins, for the appellee.

TORRANCE, J. Both the plaintiff and defendant are corporations organized under the laws of the state of New York and located in the city of New York. For more than one year prior to the 16th day of July, 1889, the defendant had carried on a manufacturing business, and owned real and personal property, in the town of Sprague in this state, and on that day it owned and possessed such property in that town to a large amount.

Prior to that day divers suits had been brought against the defendant, in this state, by its creditors, in which suits such property had been attached, and the defendant was in