#### NEIL, BROWN & WILLIAMS vs. L. D. CHILDS & Co.

A party does not make one his witness by taking his deposition,’which he declines to read, or by having him subpasnoed, and then declining to examine him.

All contracts are several, although made by partners.

The case of Jones v. Ross, 2 Car. Law Rep. 450, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg County, at the Special Term in July 1849, his Honor Judge Bailey presiding.

This was an action of assumpsit, brought by the plaintifts, as partners, under the style of Neil, Brown & Williams, against the defendants, as partners, under the style of L. D. Childs & Co. The contract, on the part of the defendants, was to make and deliver certain machinery for a cotton factory, and the breaches alleged were, that the machinery was not of proper materials and workmanship, nor delivered according to the contract. The plaintiffs introduced one Stowe, as a witness, who proved that, in January 1846, a contract was entered into bé-. *196tween the plaintiffNeil, acting for the firm of Neil, Brown & Williams, and the defendant Childs, acting for the firm of L. D. Childs & Co., in which it Was agreed, that the defendants would make and deliver certain machine]}' for a cotton factory at their warehouse by the 1st of August succeeding, and the plaintiffs agreed, that it should be paid for in cash on the delivery, it was also agreed, that the machinery should be made of the best materials and in the best style of workmanship. On cross examination, it was stated by the witness, that, at the time the contract was made, he was a clerk of L. D. Childs St Co, then under the direction of the defendant, Childs, and that, in the presence of the plaintiff, Neil, he took down a memorandum, in which he specified the kinds of machinery and the price of each article. It was objected that proof of the verbal contract could not be given, if the contract was written in the manner stated by.the witness. The objection was overruled. The witness proved, that the machinery was not delivered until January 1S47, and that its materials and style of workmanship were inferior to those agreed upon. The defendants then offered and read the deposition of one Springstein, to prove the value of the machinery. This deposition had been taken by the plaintiffs, but was not offered by them.

The plaintiffs introduced it witness to prove, that the witness, Springstein, had hostile feelings to them, when the deposition was taken, and that he had made state ments contradictory of the deposition, before it was taken. This testimony was objected to, but admitted by the Court. The defendants objected that the plaintiffs could not recover, because there was no proof, that- the machinery, though delivered to the plaintiffs and received by them, had been paid for, before the suit was--brought. The objection was overruled. It was objected further, that the plaintiffs could not recover, because there was no proof of the partnership of L. D. Childs and W. J. lloke. *197On this point the Court charged the jury, that, though this were true, yet, if the plaintiffs had satisfied.them that'thcy was entitled to recover against the defendant, Childs, Ihey might render their verdict against him only. The jury found a verdict against both, and from the judgment thereon, the defendants appealed.

Alexander, Osborne and Bynum, for the plaintiffs.

Landers and Guión, for the defendants. - . .

Pearson. J.

There is no error in any of the exceptions taken by the defendants. The memorandum, made by the defendant’s clerk, was not signed by the parties,'or intended by them as the memorial of their contract. It was a private entry for the use of the defendants, and might have been used to refresh the memory of the witness If the witness, Springstcin, had been called and examined, or if his deposition had been read by the plaintiff, the exception would have raised the question, whether a, party cun impeach his own 'witness, in whose testimony he is disappointed,.by shewing that he had, on other occasions. stated differently. The reason for not allowing-a party to impeach his own witness, by showing his yeneral character to be bad, is, .that he shall not be heard to say, that he attempted to impose on the jury, by calling a witness, whose general character is known to be bad; but this reason does not apply to the exclusion of declarations made on other occasions, and by which, the party, calling a witness, might have been deceived. The question is one of some interest, but ure are not called on now' to decide it, as if, does not arise in this case, for a party does not make one his witness by taking his deposition, which he declines to read, or by having a witness subpoenaed, and then declining to-exatnine him.

The machinery was to be paid for on delivery. The. payment of the price was not a condition precedent to the *198plaintiffs’ right of action. The defendants might have refused to deliver it, unless the the price was paid, or they were at liberty to deliver it and bring an action for the price. The last exception is also untenable. In an action against two, a recovery may be had against one of the defendants only, for all contracts are several, although made by partners. Jones v. Ross, 2 Car. L. Rep. 450. Bradhurst v. Pearson decided at this term. The question. however, does not arise, for the jury lound a verdict against both defendants, and there is no exception on that ground. The judgment is affirmed.

I’kk Curiam

Judgment affirmed.