Turner v. W. E. Lovett & Co.

Opinion — Rhodes

By the Court, Rhodes, C. J.:

It is not now contended that Thomas Flint was, in truth, a member of the firm of W. E. Lovett & Co., but it was *524found by the Court, that the promissory note was signed by Lovett in the firm name, in the presence of Flint, and that he and Lovett delivered it to Adams, the payee, in part payment for his interest in the partnership property, which was then sold by him to Flint; and it was also found that Flint held “ himself out to the world as a partner of the defendant Lovett, by the transaction aforesaid.” In the affidavit which was filed in support of the motion for a' continuance of the cause* it is stated that Thomas Flint, if present, would testifythat he had naught to do with and was wholly unconnected with either the execution or delivery of the promissory note, or with the direction of the business of the said firm of W. E. Lovett & Co.” On the hearing of the motion, the plaintiffs admitted that Flint, if present as a witness, would testify “ that he did not sign the note, in the complaint mentioned, or authorize the same to be signed.by any one for him;” and thereupon the Court denied the motion for a continuance. The- testimony of Flint, as stated in the aliidavit above alluded to, was competent and material upon the question involved in the finding last above mentioned, as that finding was based upon the alleged participation of Flint in the transaction, in which the note was made and delivered. The admission of the plaintiffs did not extend to all the matters which the defendants expected to prove by Flint. ""They did not admit that he would testify that he -was unconnected with the delivery of the note or with the direction of the business of the firm. The admission was not broad enough to cover all the facts, to which the defendants expected that Flint, if present at the trial, would testify, and the continuance should have been granted.

Judgment and order reversed and cause remanded for a new trial.