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Bank v. Bank, 136 U. S. 223, 10 Sup. Ct. 1013, 34 L. Ed. 341. But the statute under consideration clearly prescribes a different rule as to chattel mortgages. Its effect is to restrict the agency of the individual partner in respect to such instruments, and to deprive him of the power otherwise held to reside in him by reason alone of his relation of partner to mortgage the personal property of the partnership, either by signing the firmn name to the instrument, or the names of his copartners by himself, or by merely signing his own name. Thus the requirement of the statute effectually withdraws the only support of the rule elsewhere prevailing which permits one partner, under certain conditions, to execute a valid chattel mortgage upon partnership property.

It is not contended that the mortgage in controversy was, in any event, a lien upon the interest of Lellman, assuming the existence of the partnership, nor would such a contention, even if correct, be of any practical benefit to the defendants, since the evidence clearly discloses that he had no remaining interest after the payment of the partnership debts. We need not, therefore, express any opinion as to whether a mortgage of partnership property not executed by all the partners as required by statute could be construed as a mortgage of the interest of the partner or partners executing it, without such an intention being mentioned in the mortgage. In the case of Ridgely v. Bank, supra, Judge Hallett held that the mortgage could not be so construed. A partner's interest in firm property is only his proportion in the surplus after the payment of partnership debts, and the settlement of the partnership accounts, and, until that occurs, it is impossible to determine the extent of his interest: and so it is held that a mortgage by one partner of his interest does not create any actual lien upon the partnership property itself, but is only a lien upon the interest of the partner as finally ascertained. Jones on Chat. Mortgages, § 45; 1 Cobbey on Chat. Mort. 434.

There is some contention as to the absence of an allegation in the petition of notice on the part of the mortgagee of the alleged fraud of the mortgagor in the execution of the mortgage, but the point seems to be directed to the sufficiency of the petition in respect to the charge that the mortgage was made for the purpose of hindering, delaying, and defrauding creditors, which charge, upon the evidence, is eliminated from the case as a substantive ground of recovery. It is clear, we think, that want of notice on the part of a mortgagee named in a chattel mortgage of partnership property that the property was partnership property will not, for that reason alone, render the mortgage valid. The statute is not confined to chattel mortgages executed in favor of one who has actual notice or is chargeable with notice of the ownership of the property, but it is general

in its terms, and plainly requires that every chattel mortgage to operate on behalf of a partnership shall be signed and acknowledged by each partner. The statute, having taken away from a single partner all power which he might otherwise have, had to create a valid lien by chattel mortgage upon partnership property, an attempt on his part, acting alone, to do so, is analogous to the execution of a chattel mortgage upon property not belonging to the mortgagor; and it is not conceivable, in the latter case, that the mere fact that the mortgagee did not know that the property was owned by another would give him a valid and enforceable lien upon it against the true owner or his creditors. It was not necessary, therefore, that the petition should allege that the mortgagee was without notice that the property mortgaged was partnership property in order to question the validity of the mortgage under the statute above mentioned. If the circumstances were deemed to be such as would operate by way of estoppel to prevent the assertion of a right to the property as against the mortgagee by the partner who did not sign the mortgage, or by the creditors, that would be defensive matter to be alleged and proved by the mortgagee. No such defense was alleged, nor would the evidence support it. On the contrary, we are of the opinion that the evidence is sufficient upon which it might have been found that the mortgageewas chargeable with notice of the actual situation as to the ownership of the property. had that matter been important, and put in issue. That it was not deemed important or to be an issue in the case would appear from the fact that the defendant mortgagee did not testify as a witness, and no evidence was adduced, nor any instruction requested in relation to notice or knowledge on her part.

It is contended that the court erred in permitting an amendment to the petition after judgment to conform to the proofs. It appears that the cause came on for trial April 18, 1904, and was concluded on the following day, when the verdict of the jury was receivand judgment rendered; that on April 29, 1904, a motion for new trial was filed by the defendants below, which was argued December 1, and decided December 27, 1904. The order, overruling the motion, recites that plaintiff, by his counsel, had filed an application to amend his amended petitio. so that it may conform to the proof made at the trial of the cause, and that "the court, having considered said application, does permit, authorize, and direct the amendment as prayed by the insertion or interlineation of the language, "That the assets in plaintiff's hands were at the commencement of this action and are at the present time and have been during the period of his trust insufficient to pay all creditors,' the same to be inserted or interlined in the fourth paragraph of said petition, and to be resubscribed

and resworn to, the court believing the same to be in furtherance of justice to parties concerned, to which order counsel for the defendant excepts." And thereupon the motion for new trial was overruled. The bill of exceptions recites that in open court at the time of the hearing of the motion for new trial the plaintiff made his motion for leave to amend his petition. But it appears also by the bill that the formal written motion was not actually filed with the clerk until December 28th. The only proper inference from the record in this respect is that when the motion for new trial was being heard, and, when both counsel were in court, the plaintiff asked leave to make the amendment; that such leave was subsequently granted in open court, in the presence of counsel for both parties, immediately before overruling the motion for new trial; and that the motion was one which had already been acted upon, to the end that the record might more formally show the character of the application. Afterwards, and on January 3, 1905, defendants moved to strike the motion filed December 28th from the files, and also the said amendment to the petition, on the ground that no notice of the making or hearing of the motion to amend was given to defendants or their counsel in writing or otherwise. Other grounds of the motion to vacate went to the merits of the motion or application for leave to make the amendment. The motion to vacate was heard and overruled March 22, 1905, to which ruling the defendants reserved an exception.

The first point urged in support of the proposition that error was committed in allowing the amendment is that no notice was given of the motion for leave to amend. It is sufficient answer to that to say that it does not appear that the objection of want of notice was interposed when the motion was made and heard in open court in the presence of counsel, and during the hearing upon the motion for new trial. We must assume that, at the time the motion was so made, it was heard by the court and taken under advisement, without objection on the ground of want of notice. In a California case with reference to a similar objection the court said: "But, conceding that previous notice of the application should have been given, still, we are unable to see that appellant was in any way prejudiced by the failure. He was present in court when the motion was made, and raised no such objection then. On the contrary, he proceeded to argue the question at length, and, when it was decided against him, took a general exception to the ruling. This was in effect a waiver of notice, and appellant cannot now be heard to complain of the action of the court on this ground." Herman v. Santee, 103 Cal. 519, 37 Pac. 509, 42 Am. St. Rep. 145. See, also, 14 Ency. Pl. & Pr. 127. In Kuhn v. McKay, 7 Wyo. 42, 49 Pac. 473, 51 Pac. 205, this court held that where an amendment might

have been allowed to correspond with the facts proven, which would not have changed the cause of action, the judgment would not be disturbed because no formal amendment was made. The defendants therefore having submitted in open court to a hearing of the motion to amend, without objecting to the motion or hearing for want of notice cannot now be heard to object to the amendment on that ground. that ground. The fact that the motion was, after hearing, put in formal shape and filed does not, we think, alter the situation; since it does not appear that objection was made at the time that the motion was not in writing. It may, indeed, have been presented in written form though not filed until the motion was granted; and the order of December 27th treated it and referred to it as filed.

This brings us to the merits of the amendment. Was it error to allow it? It is clear that its allowance was based upon the provisions of section 3588, Rev. St. 1899. That section reads as follows: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved and when an action or proceeding fails to conform to the provisions of this division, the court may permit the same to be made conformable thereto, by amendment. The party applying to amend during the trial shall be required to show that the amendatory facts were unknown to him prior to the application, unless, in its discretion, the court shall relieve him from so doing." The general rule under such a statute in that amendments to conform to the proof should be liberally allowed, where justice will be thereby promoted. The case of Henry V. Jeans, 48 Ohio St. 443, 28 N. E. 672, cited by counsel for plaintiffs in error, does not discredit that rule, but adheres to it, although it is said in that case that the power to make new parties after judgment "will be sparingly exercised, and with a cautious discretion." It is well understood, however, that an amendment after judgment to conform a pleading to the proof will not in all cases be allowed. If allowed at all the amendment should be in furtherance of justice, and the statute only permits such an amendment when it will not change substantially the claim or defense. It has been held improper to allow the amendment where the case was not tried upon the theory suggested by the amendment, or where it would enable the plaintiff to recover upon an utterly unconscionable demand, or where the admission of the evidence to which it is desired to conform the pleading was promptly objected to when it was offered, upon the ground that

it did not tend to support the allegations in the pleadings. 1 Ency. Pl. & Pr. 584-586. It has been held also that there is no warrant for allowing such an amendment to a pleading which, without it, does not state a cause of action; and it is contended in the case at bar that the petition did not state sufficient facts to constitute a cause of action, in the absence of the allegation permitted by the amendment here questioned.

The amendment is not, in our opinion, subject to either of the objections above mentioned. The case was not tried upon a different theory. On the contrary, the plaintiff's case was presented on the theory that the estate of the bankrupt, including the partnership property was wholly inadequate. for the satisfaction of the demands of the creditors, and the evidence, which was received without objection, clearly established the insufficiency of the assets in the trustee's hands, including the property covered by the mortgage, to pay the creditors. It is clea also that the amendment did not change the cause of action. Before the amendment the petition alleged the existence of the partnership between Lellman and Hackman; that the property administered upon by the plaintiff as trustee was the property of the partnership; that Lellman and the partnership were insolvent when the mortgage was given; that the property therein described was partnership property; and that Lellman unlawfully mortgaged it to the defendant Guild. It was also alleged that the acts of the defendants in the making of the mortgage prevented the plaintiff from equitably apportioning the property mortgaged towards the satisfaction of debts for which claims had been filed in the bankruptcy proceedings. The prayer of the petition was that the property, covered by the mortgage, be declared partnership property, and the mortgage be adjudged null and void. If it be conceded that it was necessary to allege and prove the insufficiency of the assets to pay the creditors, there was not such an entire absence of allegation in that respect as would render the petition incapable of supporting a judgment, as not stating a cause of action. The trouble with the petition in that regard was not that it did not state a cause of action, but that the statement was defective, to cure which supposed defect the amendment was allowed to conform to the facts established on the trial by evidence which had been admitted without objection. If the assets in the plaintiff's hands had been sufficient to pay creditors, then the mortgage might not have had the effect, as alleged, of preventing the equitable distribution of the mortgaged property among the creditors, because, in that event, the property might not have been required for such purpose. The fact that the assets were insufficient having been shown without objection, it is evident that it would have been unreasonable to require a new trial be

cause of the absence of a plain allegation to that effect in the petition. The trial court very properly found that the amendment to conform to the facts was in furtherance of justice, and we are satisfied that no error was committed in allowing it to be made.

On the trial of the cause the plaintiff below testified that as trustee of the bankrupt estate he took charge of the property belonging to it including the property of the partnership of Lellman & Hackman at Diamondville, Wyo., consisting of the hotel property, furniture in the hotel, books, papers, etc., and that he received all such property from the said Lellman. During the course of his examination as a witness, the plaintiff produced the hotel ledger, and was permitted to testify without objection as to certain entries found in the book, whereby it appeared that on the inside of the book was written "Ledger of Daly Hotel, Lellman & Hackman. proprietors," and that it contained various entries of hotel accounts appearing by their dates to have been written during the years 1901 and 1902, and the witness testified that some of such entries were in the handwriting of Mr. Lellman, and others in the handwriting of Mr. Johnson who had acted as the hotel clerk during that period. By the testimony of the witness, it appeared that the accounts so found entered in the ledger were for board bills, and bills usually incurred at hotels. The witness also produced certain papers appearing to be statements of account dated during the year 1902, made out in the handwriting of Lellman, and marked paid in full over his signature. Those statements appeared, by their recitals, to contain a statement of the account of the debtors named therein respectively with the "Daly Hotel, Lellman & Hackman, Proprietors." In the same connection the witness further produced four drafts, two of them appearing to have been drawn by the same party, and the others by different parties, but all drawn upon Lellman & Hackman, Diamondville, Wyo., dated respectively January 19, March 11, July 10, and November 15, 1901, each of which was marked paid; the drafts having been found by the trustee among the books and papers kept at the hotel. The drafts were admitted in evidence over the objec tion of the defendant, and an exception was reserved to the ruling; and later a motion by defendants to strike them from the evidence was denied, to which an exception was also reserved. It is contended that prejudicial error was committed in the admission of the drafts. The drafts were objected to on the ground that they did not tend to show the existence of the partnership at the date of the mortgage, that they did not show who paid them, though counsel admitted that one of them had been paid by Lellman; and the motion to strike was made on the ground that they did not tend to establish the point in controversy, or the fact that the partner

ship existed, or that the parties were doing | plaintiff to show that the mortgage was givbusiness as such when the mortgage was given, and that the acts of third parties, so far as they appear on the face of the drafts, or by the indorsements thereon, cannot bind the members of the partnership, and further that they were in the nature of hearsay evidence, and, therefore, inadmissible.

As the drafts do not, on their face, disclose whether the debts thereby represented respectively were contracted before or after the date of the alleged dissolution, and there was no evidence outside of the drafts themselves upon that subject, it is clear that their payment would not be inconsistent with the claim that the firm had dissolved in January, 1901, and that Lellman then assumed the payment of all the firm debts contracted in the business at Diamondville. It may, therefore, be conceded that the drafts themselves, with the fact of their payment by Lellman, would not tend very strongly, if at all, to entradict the evidence afterward introduced on the part of the defendants to the effect that the firm had been previously dissolved. But there had been no evidence of a dissolution when the drafts were admitted, nor was any such claim then made by direct allegation of the pleadings. As disclosed by a remark of the trial judge in ruling upon the objection to one of the drafts, they were admitied for the purpose of proving that at a date prior to the giving of the mortgage a partnership existed. At the time the drafts were offered and admitted, and the rulings in reference thereto were made, the answer of the defendants consisted only of a general denial of all allegations of the petition. The petition had not then been amended, but it alleged that, in the course of the administration of the bankrupt estate, one James Hackman, a member of the firm of Lellman & Hackman, a copartnership composed of said Hackman and Lellman, the bankrupt, filed with the referee in bankruptcy consent and authority for the trustee to include in the administration of the bankrupt estate the property of said partnership, which was followed by allegations to the effect that the trustee was administering upon the property of that partnership, and that the property covered by the mortgage in question belonged to that partnership when it was executed, and that such mortgage was unlawfully executed by Lellman. The general denial put these facts in isue. The practical admission that a partnership had once existed, by the amended answer which alleged its dissolution in January, 1901, was not in the case when the drafts were admitted in evidence, nor when the motion was made to strike them from the evidence. That was filed subsequently, after the plaintiff had amended the petition by more specifically more specifically alleging the existence of the partnership on the date of the mortgage. Thus, upon the issues as they stood at the time of the rulings in respect to the drafts, it was incumbent upon. the

en upon property belonging to the partnership of Lellman & Hackman. He was proceeding to establish that alleged fact by proof of the conduct of the parties, and particularly the acts of Lellman in the conduct of the business at Diamondville. Before the drafts objected to were offered, the plaintiff had introduced the written consent of Hackman, as a partner of Lellman, that the firm property should be administered upon in the bankrupt proceeding, which consent appeared to have been signed October 6, 1902, and filed with the referee in bankruptcy on the same date. The objections interposed to the drafts disclose a clear understanding of the issue in respect to the allegations of the partnership as then made up, for they were not made with express reference to the effect of the drafts or their payment upon any supposed or alleged dissolution. The objection was that the drafts drawn upon the firm and paid by Lellman, and found among his effects in the hotel, did not tend to prove the existence of the partnership on December 14th, following the date of the drafts, when the mortgage was executed. But they did tend to prove the fact of partnership on that date, and were clearly admissible for that purpose. The drafts were offered in connection with other evidence of the conduct of the business; all the drafts were dated in 1901, and the latest one within a month of the date of the mortgage. In proving a partnership between other parties on a certain date by their conduct the law does not confine a party to proof of acts on the exact date in question, but evidence tending to show a partnership at an earlier date, if not too remote, is always admissible, since a partnership shown to exist on a certain date will be presumed to have continued unless something to the contrary appears. 22 Ency. L. 49. "A partnership shown to exist is evidence of its existence at a later date under the usual prima facie presumption of the continuance of a juridical relation or constancy of a condition of affairs, more or less strong according to the length of intervening time." 2 Bates on Part. § 1159. The drafts were, therefore, properly admitted. The same is true, and for the same reasons, respecting a bill rendered against the firm in July, 1901, by a Utah concern, which was marked paid, and was found among the other papers in Lellman's possession at the hotel.

Some other objections urged against the rulings of the court in the admission or rejection of evidence will be briefly noticed. Error is charged in the admission of the written consent of Hackman, the alleged copartner of Lellman, that the trustee might include the partnership property in administering the bankrupt estate. The paper was admitted chiefly, we take it, to show the trustee's authority over the alleged partnership property, though, doubtless, it may have tend

ed to discredit Hackman's testimony in support of the alleged dissolution in January, 1901. The objection interposed to its admission was the single one that it did not show when the partnership existed. That objection very clearly constituted no ground for its rejection. The paper recited that "James Hackman, a partner of Fred Lellman, the above-named bankrupt," consents that the property owned or belonging to the firm of Lellman & Hackman, both real and personal, shall and may be administered in bankruptcy in the proceedings wherein Fred Lellman is bankrupt, and it was signed by said Hackman, and filed with the referee in bankruptcy. But we fail to see why the paper was not competent as against any objection for the purpose of establishing the right of the trustee to question the validity of the mortgage.

It is also contended that the court erred in sustaining an objection to certain questions propounded by counsel for defendants below to the referee in bankruptcy while testifying as a witness for plaintiff with reference to statements made to him by Hackman when he filed the written consent or subsequently. The referee had testified positively that Hackman came to him voluntarily, and offered to file such consent. The first question of that character inquired whether Hackman did not state to the witness that Lellman and himself had formerly been partners, but had dissolved their partnership, Lellman taking the Diamondville property and he (Hackmar taking the Evanston property. In connection with that question when objection was interposed, defendants' counsel stated that the purpose was to prove that the consent had been given involuntarily under the advice of the referee, and under the supposition that he (Hackman) would be afforded some protection by filing the consent; and that afterwards he informed the referee that he was not a partner of Lellman and had not been for some time, but that if there were any partnership assets he was willing that they be taken by the firm creditors. The proposed testimony was excluded on the ground that subsequent statements of the copartner were not competent to contradict the written consent filed by him. But no exception seems to have been reserved to the ruling in relation to the above question, and hence that particular ruling is not properly before us. However, immediately following the ruling upon that question, two other questions were put to the witness, to both of which objections were sustained, and exceptions reserved. One of those questions asked if Hackman did not, at the time, represent to the witness that he was willing that all the partnership assets of Lellman & Hackman, if any there were, might be subjected to the claims of the firm creditors; and the other was as follows: "You are unable to state, then, what Mr. Hackman did say at that time when he signed this instrument in your office or subsequently to that date." 87 P.-63

No offers were made in connection with the last two questions as to proof proposed, but it is not perceived that an affirmative answer to the one referring to Hackman's willingness that the firm property, if any, be subjected to the claims of firm creditors would have been so beneficial to the defendants as to render its exclusion prejudicial error, even if erroneous, nor in what manner it would have discredited his written consent. And as to the last question, the defendants were clearly not prejudiced by the ruling upon it, since, if the witness was unable to state what was said, it would have proven nothing. The consent would not in itself amount to proof as against the defendants below, that the property in question was partnership property; its only effect, if any, upon that question was whatever force the jury or court might concede to it as contradictory of Hackman's testimony, hereafter to be referred to.

It is claimed that error was committed in excluding testimony offered by defendants through the witness, Charles Stone, as to statements made to him by Hackman shortly after January, 1901, to the effect that the firm had dissolved. The sole question propounded to that witness which was objected to was whether Mr. Lellman had not made a statement to him as to who should pay the debts of the partnership incurred at . Diamondville. It appears that, although an objection to the question was sustained, it had been answered before the objection was made, and the answer is in the record, and must have gone to the jury. The answer "I think it quite possible." The witness, moreover, without objection, in response to other questions, testified quite fully as to statements made to him by Lelman; and we fail to find in the record any exclusion of statements made to the witness by Hackman. The admission in evidence of a chattel mortgage upon the property in controversy executed in 1899 by both Lellman and Hackman to the Blyth & Fargo Company of Evanston is also assigned as error. It was first offered and admitted before the amendment to the petition specifically alleging the existence of the partnership at the date of the mortgage to the defendant Guild, and, as appears by the record, immediately following its admission counsel for the defendants questioned whether the petition sufficiently alleged the partnership, and that resulted in the amendment aforesaid, and, after the amendment had been made, the mortgage was again offered in evidence, and admitted without objection. The instrument was offered on each occasion as tending to show the firm ownership of the property, and we think it was admissible for that purpose, but whether admissible or not, the defendants cannot complain since it was finally offered and received without objection.

The plaintiffs in error complain of an instruction given to the jury to the effect that as to creditors or other persons dealing with

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