108 Ala. 346 | Ala. | 1895
The sections of the Code, (2816-32), entitled “Examination of parties by interrogatories,” had their origin in a pre-existing statute which’ in terms provided for a discovery at law. Clay’s Dig. 341, § 160. In Allen v. Lathrop, 90 Ala. 490, it was in effect, decided that the construction given the pre-exist-ing, should be applied to, the present statute. We see no .reason to doubt the correctness of the decision. The purposes of the two statutes , and the mode of precedure prescribed, are similar, if not identical. Each created a right to a discovery in civil suits at law, which, in the absence of statute, could be obtained only in equity. The mode of procedure is assimilated to that pursued in equity. The filing of interrogatories, which when read in connection with the issues formed, disclose the materiality and pertinency of the testimony sought to be elicited, is the equivalent of the necessary allegations of a bill in equity for discovery. The requisition of a verified answer to them, and the proceedings to which the court may resort, if answer is not made, or if it be not full, or evasive, indicate that the practice and procedure should be analagous, to the practice and precedure of courts of equity.
The party to whom the interrogatories are filed, cannot be placed in default for the want of an answer, unless he fails to answer for sixty days after service of the interrogatories. The mode of service, if the party reside out of the State is not particularly prescribed, nor
The statute, in general terms, declares that if the party to whom the interrogatories are directed, resides out of the State, “the clerk must issue a commission to take his testimony, to which a copy of the interrogatories must be appended.” The statute does not, in express words, declare that the commission must issue at the instance of the party to whom the interrogatories are addressed, yet, it is incapable of any other interpretation. 'He is the party to be put in default, and who may suffer from the default, if answers to the interrogatories are not made and certified; and it is of consequence his exclusive right to sue out the commission. Such is the practice in courts of equity, (Rule 34, Ch. Pr. Code, p. 817), and correspondence to this practice, the statute contemplates.
Without notice of the filing of the interrogatories to the attorneys of record of the plaintiff, the defendant sued out a commission for the taking and certifying the answers of the plaintiff, nominating the commissioner. The commissioner called before him an officer of the plaintiff, who made answers to the interrogatories, but he declined to forward the answers to the court, unless his fees for the taking and certifying of them were paid. The whole procedure was irregular and unauthorized, and the plaintiff, or any of its officers, could well have refused to take notice of, or to have made answer to the interrogatories. By no such procedure, could the plaintiff be placed in default, entitling the defendant to claim that judgment of nonsuit be entered. If there was any
When suit against a partnership is founded on an instrument in writing, the due execution of the instrument apd that it is a partnership obligation, can be put in issue only by a verified plea. — Code, § 2770. A plea of non est factum, is a sufficient denial of liability to satisfy the requirements of the statute. — Fowlkes v. Baldwin, 2 Ala. 705 ; Mauldin v. Bank, ib. 502. Such plea casts on the plaintiff the burden of proving the existence of the partnership, and that the party pleading, and the party signing the instrument, at the time of its signing, bore the relation of partners. The verified plea interposed by the defendant Cain, cast this burden on the plaintiff in this case. Direct, positive proof of the part-nerdiip, was not reqired ; and when the controversy is not between the partners inter se, but with third persons, is usually not attainable. In McNeill v. Reynolds, 9 Ala. 315, it was said by Collier, C. J.: “In order to charge persons as partners, the utmost strictness of proof is not required. It is sufficient to show that they have acted as partners, and that by their habit and course of dealing, conduct and declarations, they have induced those with whom they may have dealt, to. consider them as partners.” ' There is no fact which becomes the subject of judicial contestation, that may not be as well proved by circumstances having a reasonable tendency to support its existence, as by the direct, positive testimony of witnesses having personal knowledge of it. '
The facts introduced by the plaintiff, as evidence of the partnership, against the objection of the defendant, maybe thus summarized: Moore, by whom the contract in suit was’signed with the firm, name, and the.dé'--' fendant Cain, were and had been members of a’partner--.' ship known as Moore, Kirkland <fc Co'., engaged in the’ buying and selling ’of lumber, The partnership’ contemplated'adding ibo its business the manufacture of. .lumber, locating that branch in Georgia, and conducting it under the name of the Cain Lumber Company. Prior to the
The written articles of partnership forming the Gain Lumber Company, were not signed until several days after the making of the contract with the plaintiff; and one Emerson signed them in connection with the members of the firm of Moore Kirkland & Go. In consequence of the inability of one of the,.associates to make his stipulated contribution to the capital of the' partnership, the partnership was abandoned, and'th'e business, was there- ' '
The point of several of the objections to the admissibility of evidence made in the court below, seems to have been, and such is the argument here made, that the articles of partnership, were the primary and exclusive evidence of the commencement and existence of the partnership. In controversies between partners, as to their respective .rights and liabilities, it often becomes material to ascertain when the partnership actually com, menced. If there are written articles of partnership:- and they do not import the contrary, ordinarily,'the date of the articles fixes the beginning of the partersbip. — Ingraham v. Foster, 31 Ala. 123. And there are inchoate agreements to form a partnership, not ripening into the relation, until there is a final agreement constituting it; and from the day of such agreement, the partnership has its commencement. Partnerships are often formed by parol, — they rest in mere verbal agreement. Whether formed by writing, or by parol, their commencement, existence and continuance is generally manifested to strangers by circumstances ; outward, visible facts — by the acts, the conduct, declarations, dealings and transactions of the several partners in the partnership name. Where such transactions are involved, strangers dealing with the partnership in good faith, may well rely on these outward, visible circumstances, unaffected by the inquiry when the partnership articles were signed, or when the-inchoate agreement to form the partnership, ripened into a final agreement. — Collyer on Part., 804, § ' 509. The evidence to which we have heretofore referred, had, as we have said, to say the least, a reasonable tendency to show .that the partnership had commenced and was actually engaged in business when the contract ’ was madeupon all that it manifested, -the plaintiff ; could reasonably and rightfully rely,, and cannot be "dis-". appointed by the fact that the execution ' of the article’s-of partnership was deferred to a later dáv. There, was'
The scope of the controversy in the court below, seems to have been limited, if not exclusively, more immediately, to the question of the existence of the partnership ; certainly all the instructions to the jury, given or refused, were directed only to this .question, as were nearly all the objections to the admissibility of evidence. The character of the contract, whether it is a contract of bargain and sale, or executory for the manufacture and future delivery of machinery; what are the respective rights and liabilities of the parties, if the contract is of the one or the other nature or character; or what is the measure of damages the plaintiff is entitled to recover, were matters, so far as is shown by the record, upon which the court below was not required to make, and did not make any specific rulings ; and of consequence are not now open for consideration. If in any event, the compensation the plaintiff paid, or promised to pay Beale, its agent, for the negotiation of the contract, could be deemed an element of recoverable damages, it would be an element of special, not of general damages — of the proximate damage, presumed necessarily to result from the breach of the contract. The complaint makes only a claim of general damages ; it afforded the defendant no information that the special damages, and certainly not that this compensation would be claimed as a part of the recoverable damages. The rule is well settled, that in an action fo.r the recovery of damages, sjtecial as distinguished from general damages, must be averred with so much of certainty and distinctness, that the defendant will be informed of the facts intended to be proved, and that the court can ascertain. whether there be a right to recover them. 'The evidence in reference to this compensation was inadmissible, and'there was error in overruling the. objection to it. The' admisssion of irrelevant evidence is an error which will Work' a reversal of a judgment,' Unless the record clearly' shows no injury could have' resulted froth it. — 1 Brick'. Big., SOy, §90. Whether this' evidence influenced. or entered into the verdict of the jury, is' now mere' matter of conjecture'. We' can feel no assurance that it was not without influence, and did not induce the rendi
The instructions given the jury at the instance of the plaintiff are assigned as error. The assignment has not been argued by counsel, and must be deemed waived. For the error pointed out, the judgment must be reversed and the cause remanded.