Nathan Clifford

“ On recurring to the transcript, we find that the court, before the instructions excepted to were given, explained to the jury the nature and character of the charge, describing substantially the two forms i which it was presented in the several counts of the declaration; and in effect instructed them that it must be proved in the one or the other of those forms, in order to entitle the plaintiff to a verdict in his favor. Those explanations immediately preceded the instructions embraced in the exceptions, and, in fact, may be regarded as a part of the same. ”

“ If the sale was made by the plaintiff alone, or by the plaintiff through E. H. Castle as his agent, (acting in that behalf, and not for the firm,) then, no matter what were the representations by E. H. Castle, the jury must find for the defendants.
4. Unless the sale was made or negotiated by the firm, the jury should find for the defendants.
5. That the fact of a guaranty of the payment of a debt by Filkins is not evidence of fraud, nor of want of solvency at that time. There is no presumption that the return of the officer is untrue. ”

“ Numerous exceptions were taken by the defendants in the progress of this trial to the rulings of the court, in admitting and rejecting evidence, and they also excepted to two of the instructions given by the court to the jury.
1. As the facts have been found by the jury, the questions to be determined are those that arise upon the exceptions. Of these, the first in the order of the argument at the bar is the one founded upon the refusal of the court to order a nonsuit as to the defendant, Granger, as requested by the counsel at the close of the plaintiff's testimony. ”

“ If the goods were in the custody of the defendants for sale on commission, and one or more of the partners made false and fraudulent representations as to the party to whom they were to be sold by the defendants, then the partnership would be liable, if in consequence of such representations the plaintiff consented to the sale to that party, and the sale was actually made by the firm to the party. ”

“ Both instructions were framed upon the theory that the defendants were not liable, unless the jury found from the evidence that the goods were actually sold by the firm; which, to say the least of it, was a theory sufficiently favorable to the defendants. Judge Story says, in his valuable work on partnerships, that torts may arise in the course of the business of the partnership, for which all the members of the firm will be liable, although the act may not in fact have been assented to by all the partners. ”

“ There is, says the learned judge, so palpable a failure of justice, where the evidence for the defence discloses a case against a defendant already prematurely acquitted, that such acquittal ought never to take place until there is the strongest reason to believe that such a consequence cannot follow. ”

“ Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to testimony on the ground of irrelevancy are not favored, for the reason that the force and effect of circumstantial facts usually and almost necessarily depend upon their connection with each other. ”

“ In the first place, it is alleged that the defendants, on the eighth day of November, 1855, fraudulently sold on credit, at Chicago, to one Edward S.C.astle, certain goods belonging to the plaintiff, and which he had previously intrusted to them, as commission merchants, for sale; and that the purchaser, at the time of the sale, was in failing circumstances and irresponsible; charging, in the same connection, that the defendants, at the time of the transaction, well knew that the purchaser was insolvent, and wholly unfit to be trusted ”

“ Story on Part., sec. 166; Collier on Part., (Am. ed., 1848,) secs. 445 and 457; Nicoll v. Glennie, 1 Maule and Selw., 568.
In precise accordance with this view of the law, it was said, and well said, by the court, in Olmsted v. ”