and, unless the paper established that fact, it was immaterial. # * the ground of the convenience of witnesses. Pogue made default, but Nickell filed an answer denying every material allegation of the complaint. A trial before a jury resulted in a verdict and judgment in favor of the plaintiff against the defendant Nickel, from which he has appealed to this court. The principal question litigated upon the trial was whether or not a partnership existed between Pogue and Nickell at the time the goods mentioned in complaint were sold. In other words, whether the said goods were sold to M. E. Pogue, or to M. E. Pogue and Charles Nickell, as partners. The questions requiring our attention on this appeal are those arising on the rulings of the court below in the admission and exclusion of evidence, and the giving and refusing of instructions. The appellant denied that any partnership ever existed between himself and Pogue. On the contrary, Pogue testified that such partnership existed at the time of the sale of the goods, and that Nickell was a dormant partner. The defendant Nickell testified that such partnership was never entered into; that it was talked of between himself and Pogue, and that he prepared duplicate articles of agreement with a view of form This case is clearly distinguishable from that of Emerson v. Parsons, 46 N. Y. 560. There the defendants, who claimed that the partnership had been dissolved, testified to its dissolution, and then offered the following writing in evidence: "This is to certify that I have purchased the interest of M. H. Parsons and Levi S. Parsons in the firm of E. F. Baker & Co.; and I hereby agree to assume all liabilities of the said firm, and hold M. H. Parsons and Levi S. Parsons harmless. E. F. BAKER." This was objected to by plaintiff, but received by the court, and the ruling excepted to. The judge subsequently charged that this writing was evidence of the dissolution of the firm, together with the proof of parol dissolution. It is evident that in that case the minds of the parties met in the agreement of dissolution. The parties had agreed to a dissolution before the writing was executed, and it was so executed and delivered as evidence thereof; and no question was made as to the existence of a copartnership between the parties prior to that time. CHURCH, C. J., who delivered the opinion of the court, said: "The two members of the firm who defend this action testified, in sub-ing such a partnership, but that the same stance, that the partnership was dissolved were never executed; that he advanced to on the 3d of September, and that this paper Pogue $1,500, for which Pogue gave him a was then executed and delivered by Baker, note and chattel mortgage. The defendant as evidence of the dissolution. I Nickell also testified, in substance, that after apprehend such a writing, in part fulfill- he obtained Pogue's note bearing date Janment of the parol contract, would be com-uary 30, 1884, and having heard that Pogue petent upon the question whether such an had reported to several parties that he agreement was in fact made, as corrobora- (Nickell) was interested with Pogue as a tive of the alleged parol contract, and as a partnerin the business at Gold Hill, to propart of the transaction." Another feature tect himself, he prepared an agreement datin that case which gives the transaction ed February 28, 1884. Said paper was promore the character of a dissolution of a duced, and called "Exhibit D;" and after partnership is the disposition of the assets the witness identified the same, and testiand provision for the payment of the debts. fied that it was executed by Pogue and But the widest difference between the two himself, in his office at Jacksonville, on the cases is in the acknowledgment of the exist-day it bears date, the same was offered in ence of the partnership in the one and in the evidence, and is as follows: "Exhibit D. positive denial of it-in the other, except so Jacksonville, Feb. 28, 1884. Know all men far as logical rules enforce its confession. In this respect the appellant necessarily occupies an equivocal position. He cannot consistently maintain his attitude. He says, in effect, that he was not a partner with Pogue at any time, and that the partnership was dissolved on the 28th day of February, 1884. If he had interposed a plea as inconsistent as his attempted proof, it would not have stood a moment; and I do not see that he is any more entitled to prove his case hypothetically than he is to plead it in that manner. His defense, in that respect, involves as great a degree of absurdity as the old case of the hunter who aimed to kill the animal, if a deer, and miss it, if a calf. According to my view of the case, the judgment appealed from should be affirmed. STRAHAN, J., (dissenting.) The plaintiff brought this action against one M. E. Pogue and Charles Nickell, in the circuit court of Multnomah county, to recover for goods, wares, and merchandise alleged to have been sold by plaintiff's assignors to the defendants, as partners doing business under the firm name of M. E. Pogue. The venue was changed to Jackson county, on v.22r.no.20-41 by these presents: That, for value received, all partnership that may have existed between the undersigned, either expressed or implied, is this day at an end. And it is further understood that neither M. E. Pogue, nor his heirs or assigns, have any claim whatever against Charles Nickell, or his heirs or assigns, on any account. It is also further understood that the only claim Charles Nickell has against M. E. Pogue, his heirs or assigns, at this date, is on account of a certain note, given Charles Nickell by M. E. Pogue, for $1,500, and dated January 30, 1884, with whatever interest may have accrued. Signed and delivered on the date above mentioned. M. E. POGUE. CHARLES NickelL." The appellant then offered this writing in evidence, as tending to show that no partnership in fact existed between said Pogue and appellant at the times the goods mentioned in complaint were alleged to have been sold, and that any partnership that might have existed between them before that time, either express or implied, had been dissolved by said writing. The respondent objected to the introduction of this writing in evidence, because it was in the nature of impeaching evidence,-it tended to impeach Pogue; and that no proper foundation had been nership has no limit in respect to time, it laid for its introduction; and that it was not competent on the question of the dissolution of the partnership, for the reason no foundation was laid in the pleadings for its introduction, and, further, it was incompetent for the purpose of proving that no partnership existed, and said document was immaterial. The court excluded the paper from the jury, and this is the first assignment of error demanding our attention. may be dissolved by either partner, at any time. And in Cregler v. Durham, supra, it was said: "As tending to prove the fact of a dissolution of the partnership, the statements of the members of the firm, jointly made to third persons, of the fact, were admitted. This is objected to, because the statements were not made in the presence of the plaintiff. Partnerships formed by parol may be dissolved by parol agreement. When so dissolved, how may the fact of dissolution be proved? There being no written evidence of it, we do not see how it can be shown, except by the declarations and acts of the parties. Had the parties published a notice in an Indianapolis newspaper of the fact of such dissolution, we suppose it might have been given in evidence, though he plaintiff had never seen it. Yet such a ublication would have been but the parol declaration of the parties themselves. If such a publication would have been admissible evidence, why should not their joint declaration, orally made to the public, also be admissible? This plain 1. A partnership is formed by contract between two or more competent persons. Kelley v. Bourne, 15 Or. 476, 16 Pac. Rep. 40. Its terms and purposes, as well as its duration, are all conventional, and are within the power of the parties. As the partnership is formed by mutual consent of the parties, it may be dissolved in the same way. 1 Colly. Partn. § 105; Story, Partn. §§ 267a, 268; Pars. Partn. *384. If this paper was executed as it purports to have been, its legal effect was to dissolve whatever relations of partnership may have existed between the defendants at the time. It expresses the will of the parties that any part-tiff then stood in no relation to the firm renership relations that might theretofore quiring notice. We do not say either of the have existed between them were at an end; above items of evidence would be sufficient. and that is all that was necessary to ac- It certainly would not be conclusive, but complish that result, as between them- would be admissible as tending to prove selves. I think, therefore, that it ought to the fact. Their declarations and acts touchhave been admitted in evidence, when of-ing the subject are continuous res gestæ.” fered by the appellant. If it is what it pur- It was, in effect, insisted upon the arguports to be,—and of that the jury was to ment that Nickell had precluded himself judge as a matter of fact,-it was material from proving a dissolution of the alleged and competent evidence on the issue, as to partnership, because he had denied its exthe non-existence of the partnership, and istence in his answer. If there never had the court erred in excluding it. Emerson v. been any partnership between Nickell and Parsons, 46 N. Y. 560; Cregler v. Durham, 9 Pogue, then Nickell never became liable for Ind. 375; Skinner v. Tinker, 34 Barb. 333; the goods purchased by Pogue. If the partPine v. Ormsbee, 2 Abb. Pr. (N. S.) 375; nership once had an existence, but was disCarlton v. Cummins, 51 Ind. 478; Wood v. solved, by the mutual agreement of Pogue Gault, 2 Md. Ch. 433; Gardiner v. Bataille, and Nickell, before the goods were pur5 La. Ann. 597; Bank v. Page, 98 Ill. 109; chased, and Nickell was unknown to the Boyd v. McCann, 10 Md. 118. In Boyd v. plaintiff's assignors as a partner, then he McCann, supra, it is held, in effect, that a would not be liable for the purchase price notice of the dissolution of a partnership, of said goods. It is not, therefore, perpublished in a newspaper, though not perceived upon what legal principle this objecse sufficient to show either that the disso- tion can rest. Nickell was unknown to the lution took place on a certain day prior to plaintiff's assignors at the time the goods the publication, or that the parties dealing were sold. They did not rely upon his credwith the firm and others had notice of the it. He did not in any manner deceive or dissolution on that day, is yet admissible mislead them. Why, then, should he be in evidence as a circumstance tending to precluded from proving that, if such alleged show these facts. So, in Bank v. Page, su- partnership ever existed, it had been termipra, it is held that where a partnership is nated before the goods were purchased? It entered into for one year it may be termi- was argued that, logically, a partnership nated, by mutual consent, at any time the that never had any existence could not be parties may choose. And in Gardiner v. dissolved. True; but it is sometimes diffiBataille, supra, it was held that, if a part-cult to determine, upon admitted facts, nership could be established by parol, it was whether the relations of partners existed not easily to be perceived why it could not or not. When Nickell learned that Pogue be avoided in the same manner. Such evi- had reported that he was a partner, I think dence no more contradicts the act than he had the right, for his own protection, to proof of payment by a witness contradicts enter into an agreement with Pogue disa promissory note. So, in Carlton v. Cum-solving such alleged partnership. If such mins, supra, it was held that, where no partnership did exist, said agreement would definite time for the continuance of a discharge Nickell from its duties and repartnership had been agreed upon, it may sponsibilities. If it never existed, the agreebe dissolved at any time, at the option of ment could injure no one. Most of all, it any member of the firm. And in Pine v. could not injure the plaintiff's assignors, Ormsbee, supra, it was held that a partner- who did not hear of said alleged partnership for no definite period is dissoivable by ship, so far as appears from this record, either party, by mere notice; and such no- until long after the sale of the goods. No tice may be implied. In Skinner v. Tinker, authority was cited by respondent's attor supra, it was decided that, where the part-ney to support his contention on this point, and I have been unable to find any. On principle, and aside from authority, I am satisfied the rule is the other way. As a mere question of pleading, a defendant is required by the Code, after making such denials as his case will justify, to allege new matter constituting a defense, but not matter which merely controverts, or is inconsistent with, the right set up by the plaintiff. The issue as to the existence of the partnership was already made by the denials in the answer. The defendant would not have been permitted to allege a dissolution, for the reason that such allegation would have been clearly redundant. On the issue as formed, it was proper to introduce all competent evidence which either party desired, tending to prove or disprove the existence of the partnership at the time of the alleged sale. the transactions of the remaining partners after he had retired from the firm. There was no proof that Nickell gave any notice that he had retired, or ceased to be a member of the alleged firm; nor was such notice necessary, if he was a dormant partner. Newmarch v. Clay, 14 East, 239; Heath v. Sansom, 4 Barn. & Adol. 172; Carter v. Whalley, 1 Barn. & Adol. 11; Grosvenor v. Lloyd, 1 Metc. 19; Phillips v. Nash, 47 Ga. 218; Nussbaumer v. Becker, 87 Ill. 281; Cregler v. Durham, 9 Ind. 375; Scott v. Colmesnil, 7 J. J. Marsh. 416; Le Roy v. Johnson, 2 Pet. 186; Magill v. Merrie, 5 B. Mon. 168; Kennedy v. Bohannon, 11 B. Mon. 118; Bernard v. Torrance, 5 Gill & J. 383; · Boyd v. Ricketts, 60 Miss. 62; Kelley v. Hurlburt, 5 Cow. 534; Holdane v. Butterworth, 5 Bosw. 1; Davis v. Allen, 3 N. Y. 168; Vaccaro v. Toof, 9 Heisk. 194; Pratt 2. The court, in excluang said Exhib- v. Page, 32 Vt. 13; Benjamin v. Covert, 47 it D, said, "that it was not admissible Wis. 375, 2 N. W. Rep. 375; Warren v. Ball, generally, as to the existence of a copart-37 Ill. 76; Cook v. Slate Co., 36 Ohio St. 135. nership, because it was the act of the defendants Nickel and Pogue, and could not, therefore, be introduced in evidence in favor of Nickell." This ruling seems somewhat obscure; but, however meant by the learned circuit judge, as applied to the document in question, it was erroneous and misleading. It was offered to disprove, or as tending to disprove, the existence of a partnership between Nickell and Pogue at a particular time; and it was competent evidence for that purpose. It was original evidence on the very fact in controversy. It was the act of the defendants, but it was not for that reason incompetent. The partnership, if it ever existed, was formed by the agreement of these parties. It could have been formed in no other way. Why they could not dissolve it, and why the agreement of dissolution may not be shown, when proof of the fact became material, has not been in any manner explained to us. 4. The court refused the following instruction, asked by the defendant Charles Nickell: "That the duty of a retiring dormant partner to give notice of the dissolution of the partnership is a duty which he owes to those who before that time had some knowledge of the connection with the firm. To strangers having no such knowledge, he owes no such duty. As to them, he can only be charged as a partner (when in fact he is not) by showing that he in some way misled them, as that he held himself out to the world as such or that he held himself out to them. If you find that a silent or dormant partnership existed between Nickell and the said Pogue, but that Nickell retired from said firm prior to the purchase of the said goods for which these actions were brought, the plaintiff cannot recover in said actions, unless you further find that Nickell in some way misled the parties by whom said goods were furnished, by holding himself out to the world as a partner, 3. The court refused the following instruc- or to them, or knowingly allowing some tions asked by the appellant Nitkell; to one else to do so." This instruction should which refusals, in each instance, an excep- have been given. It is plain elementary tion was taken: (1) That a general part-law; and it is difficult to suggest any nership may be dissolved by the mutual plausible reason for its refusal. The auagreement of the parties; and, if you find thorities already cited abundantly show that M. E. Pogue and Charles Nickell did, that a dormant partner, retiring from the on the 28th day of February, 1884, mutually firm, need give no notice of the fact of his agree that any partnership existing be- retiring, except to those who had knowltween them should cease, and no longer ex-edge that he had been a member of it. t, then, and in that event, all partnership Those persons who had no previous notice that time existing between them was that such retiring partner had been a memdissolved, and they were no longer partners. (2) If you find from the evidence that M. E. Pogue and Charles Nickell were not partners from and after February 28, 1884, the plaintiff cannot recover against Nickell in these actions, unless you further find that some or all of those parties with whom Pogue, made these accounts knew There were some other points made upon at the time they furnished the goods and the argument by the appellant, but their merchandise of a partnership existing be- consideration is not deemed important at tween the said M. E. Pogue and Charles this time. What has been said is decisive Nickell, prior to said dissolution of Febru- on the present appeal, and requires that ary 28, 1884." The first of these instructions the judgment be reversed, and a new trial should have been given, for the reasons al- had in the court below. ready given in considering the ruling of the court in excluding Exhibit D from the jury. I think the second instruction correctly stated the law applicable to the case of a LORD, J. The argument at the rehearing dormant partner, when sued on account of properly suggests two questions for our at+ ber of the firm could have no interest in knowing of the dissolution, for the reason such retiring dormant partner could not be rendered liable to them for new debts contracted by the remaining members of the firm. This instruction should have been given, and its refusal was error. ON REHEARING. determination. These are-First, whether or that it was taken by him, or was admisthe writing purporting to be a dissolution sible for any other purpose than that for agreement was properly excluded from the which the court permitted it to be considconsideration of the jury, except for the ered by the jury. This result, if it can be purpose stated in the bill of exceptions; sustained by the record, will make the deand second, whether, when a bill of excep- fendant Nickell's testimony consistent with tions states that the court "instructed the the purpose for which the writing was jury upon all the issues involved in the taken and permitted to be used; but it will case, and upon matters properly for their make the writing only admissible to affect consideration," but no part of such charge the credibility of the defendant Pogue, and or instructions are incorporated therein, not as evidence tending to prove a partnerand certain instructions asked and refused ship dissolution. are set out and excepted to, the court will Now, turning to the record, it disclosed presume, upon such a state of the record, that the defendant Nickell testified that, that the instructions asked and refused"having heard that Pogue had reported were covered by the instructions given. to several parties that he was interested The facts have already been sufficiently set with him, as a partner, in the business at out in the preceding opinions, and a brief Gold Hill, to protect himself, he prepared outline of the pleadings, and some of the an agreement, Exhibit D," etc.; which is the evidentiary facts, will be all that is neces- writing already set out. This shows his sary to introduce the question involved in version of how the paper or writing came our first inquiry. By the complaint, the de- to be taken by him, and the reason he asfendants were charged as copartners under signed for it. "Thereupon," runs the recthe firm name of M. E. Pogue, and as liable ord, "his counsel offered said paper in evifor certain merchandise sold and delivered dence, as tending to show that no partnerto them as such, at the times therein men- ship in fact existed between said Pogue and tioned. Pogue made default, but the de- the defendant at the time the goods, for the fendant Nickell answered, in which he de- price of which this action was brought, nied that he was a partner during any of were sold by the assignors of the plaintiff, the times, as alleged, or at any other time, Dawson, and that any partnership that under the firm name of M. E. Pogue, or oth- might have existed between them, express erwise. The object of the pleadings in an or implied, had been dissolved." It is suffiaction is to arrive at a specific issue upon a cient to say that the court refused to allow given and material point; and here the ex- the paper to be admitted as evidence, and istence of a partnership, as alleged, was the considered by the jury, for any of the purmaterial point upon which the issue was poses offered, other than as evidence tendjoined. It constituted the main ground of ing to affect the credibility of the defendant contention. As outlined by his answer, the Pogue; and counsel insist, in this ruling, theory of the defendant Nickell's defense that the court committed a “glaring erwas that no partnership ever existed be- ror," upon a “vital point." To show by tween the defendant Pogue and himself; competent evidence that the alleged partand this theory he maintained and sup-nership did not exist, was undoubtedly a ported in the witness box, swearing that point of vital importance to the defendant he and Pogue were never partners at any Nickell, and his own evidence was direct time." While occupying this position be- and positive that he and Pogue were never fore the court, his counsel undertook to partners at any time; but do the facts, as show, by the writing, already sufficiently disclosed by his evidence upon this record, adverted to, that the alleged partnership, justify the assumption that the paper was which the defendant had denied and sworn taken or executed to dissolve any partnerto never have existed, had been dissolved. ship existing in fact, or in fancy, between This is the effect which they claimed for them? On the contrary, do not the facts, that writing, and which they insisted the interpreted in the light of his own testijury was entitled to consider for that pur-mony, absolutely negative the idea of the pose, despite the illogical result that it in- existence of any partnership which the volved, of placing the defendant in the awk-paper could operate to dissolve? He says, ward and embarrassing attitude of trying that, having heard that Pogue had r to prove that a thing, which he had sworn never to have existed, nevertheless did exist, and had been dissolved. As a partnership must be assumed to exist, at least, before it can be dissolved, the writing, to be operative to prove a dissolution, involved this hypotheical dilemma, and made the evidence for the defense somewhat like the answer in the Vermont precedent: "First, defendant never had the pail; second, if he ever had the pail, he returned it whole; and, third, if he did not return it whole, it was broken when he borrowed it." It is apprehended, however, that when this dissolution writing, so styled, is examined in the light of the facts and circumstances in which the defendant Nickell testified it originated, it will repel any and every idea that it was taken to dissolve any partnership that existed, or which ever did exist, between the defendants Pogue and Nickell, ogue ported that he was interested with him tas 1 and are incompetent to prove that any their respective interests, and to avoid litiother person is a member of the firm. "In such cases," said GILCHRIST, J., "the question is whether the defendants be jointly liable. Each one may admit his own liability, as far as he may choose; but, when the attempt is made to charge third persons with a debt, upon his mere declaration, the evidence is merely hearsay, and does not come within any of the exceptions which permit the introduction of such proof." Bank v. Moore, 13 N. H. 101. So that it may be said, upon the question whether a partnership exist, the rule of evidence is well established that the declarations of one of the alleged partners, made in the absence of the other, cannot, as against him, be used to establish the controverted fact of partnership. McPherson v. Rathbone, 7 Wend. 216; Cowan v. Kinny, 33 Ohio St. 428. It is evident, then, that the declarations of Pogue could not be used as evidence to establish a partnership liability against the defendant Nickell, or to create the relation of partners between them. They could not, therefore, have the effect to bind him as a partner, much less, to establish a partnership between Pogue and himself, either in fact or hypothetically; and, as a consequence, it results that the paper, or Exhibit D, cannot be operative as a dissolution agreement, within the purview of the facts for which it was prepared and executed. To hold otherwise would expand its legal operation beyond the legitimate effect of the facts to which it owes its existence, and alien to the purposes for which those facts authorize it to be used. gation. There is not the shadow of a pre tense that the writing itself was followed, at the time of its execution or afterwards, by any act or acts of dissolution. Not a dollar or thing, not an iota of property, real or personal, was taken or relinquished in pursuance of it. Not a thing was done, or expected to be done, under it; and, so far as its operative force was concerned, as to any uses it served in separating and settling any joint transaction between them, it was as lifeless as a blank sheet of paper. What, then, was the object of the writing, and what was the protection it was intended to afford? To my mind, this is plain; for the only legal purpose to which it could be applied upon the facts. It was Pogue's unruly tongue, so to speak, that portended danger; and the object was to bridle it, or to impair its power for injury. As the mere declarations of Pogue that he was his partner were incompetent as evidence and could not bind him in an action on an issue of partnership, on the other hand, his testimony that such a relationship did exist was competent, and, if the jury believed him, would bind him. Now, as the defendant Nickell believed, as he has since sworn, that no partnership existed between them, he sought and obtained from Pogue what would serve as his written declaration of the non-existence of that fact; so that, in case of an action like the present, it might operate as a restraint or bridle on Pogue's tongue, or, if his declaration should take the form of testimony, he could confront him with his written statements to the contrary which would destroy the value of his testimony, or affect his credibility, and thereby protect himself from injury. Within the facts, this explains the only legitimate object for which that writing could have been prepared, or the protection it could afford. It was to confront Pogue, in the event the issue should come as here, with his own written statements, and to condemn him out of his own mouth. For this purpose the court permitted it to go to the jury; and, in the light of the facts, it has performed the only mission it could have been designed to legally serve. But again. From the stand-point of the Despite this, however, it is insisted that defendant Nickell, the face of the facts show the writing was pertinent and relevant to that when he heard of these declarations, the issue, and ought to have been allowed and prepared Exhibit D, he did not sup- to go to the jury as evidence tending to pose, or act upon the assumption, that any show a partnership dissolution; and that partnership existed in fact or otherwise be- the rule of law declared in excluding it was tween the defendant Pogue and himself."new and novel," wrong in principle, and Now, let it be noted that the disagreement dangerous in practice. This argument in this case between the defendants does not arise out of any misconstruction as to what is their true relation upon some admitted state of facts, about which there might be a difference of opinion as to whether they were partners or there was a partnership. Cases, no doubt, may occur where, upon a state of facts, the one may think he is a partner, and the other may think otherwise; and, in the end, their true relation can only be determined by the aid of the court. But this was no such case. The writing was not prepared because the defendants differed as to what was their true relation in respect to certain dealings or transactions between them, and executed to segregate, dissolve, and settle In brief, if the defendant Nickell prepared the paper for the purposes stated, then, as what Pogue had said could not have the effect to bind him, and create the relation of partners, it follows that the paper could not be used as evidence of a dissolution, as that is repugnant to the reason of the facts, and would have the effect to extend its protection to objects, and to use it for purposes, not contemplated by the facts, and beyond the reach of any legal liability growing out of them. In this view, it is clear that the writing was inadmissible as a dissolution agreement. amounts to saying that partners may prove in their own favor whatever they may state, orally or in writing, without regard to the circumstances in which such statements originated; or, in other words, that they may prove, each other's declarations disclaiming it, that they were not partners. All that is necessary when an issue of partnership is involved, no matter what may be the facts, is to formulate each other's statements, verbally or in writing, that they were not partners,—or if a case is made against them, that it has been dissolved; and the court must admit them on the controverted facts of partnership. It makes no difference whether a partnership existed or not, or what may be their true |