15 Ga. App. 280 | Ga. Ct. App. | 1914
Simpson & Harper brought suit, as upon account, against Friese Planing Mill Company, alleging it to be a partnership composed of Mrs. John Friese and C. S. Cary. Attached to the petition was an account in the name of “Friese Planing Mill.” The plaintiffs, over objection of the defendant, were allowed to amend the bill of particulars so as to make it read “Friese Planing Mill Company.” Cary filed a general denial of the account, and also a plea in abatement, alleging, that he was not and had never been a member of the firm of Freise Planing Mill Company; that the plaintiffs were bankrupts and that the suit, if
1. It is contended that the court should have refused to allow the amendment to the bill of particulars, but this point seems to have been decided adversely to this contention, in Bowe v. Gress Lumber Co., 86 Ga. 17 (12 S. E. 177), where it was said: “When the bill of particulars annexed to the declaration is improperly headed, the defect is amendable.
2. It is contended that the court erred in admitting testimony that Cary had indorsed notes for the Friese Planing Mill Companjq and also had collected accounts due them, because this testimony was “irrelevant and inadmissible,” and because “it was, not made to appear that such ‘holding out’ was known to the plaintiffs, and that on the faith of these transactions credit was extended.” Counsel for the plaintiff in error seem to overlook the fact that there is a distinction between a case where one, though not a partner, holds himself out as such and thereby becomes liable, and the case of one who is an actual partner. It was not contended by the plaintiffs that Cary, by holding himself out as a partner, supplied a material reason for their extension of credit. Their contention was that Cary was in fact an actual bona fide partner in the firm of Friese Planing Mill Company, and that Friese Planing Mill Company was indebted to them, and that Cary, as a partner, was also indebted. “Persons who are associated in business pursuant to a contract which makes them partners inter se are partners as to third persons.” 30 Cyc. 382. It was not, therefore, a question, on the trial of this ease, whether Cary held himself out to the plaintiffs as a partner in the1 Friese Planing Mill Company, but whether he was actually a partner, and whether the partnership, as such, was indebted to the plaintiffs. Any circumstance which tended to show that Cary was in truth and in fact a partner (although he denied it) was relevant to the issue; and even evidence that he held him
3. It is contended that it was erroneous to admit in evidence a telegram to third persons, signed “Friese Planing Mill Company, per C. S. Cary, treasurer;” for the reason that it was inadmissible unless the plaintiffs knew of it before the extension of credit. It seems to be well settled that when a plea of “no partnership” has been filed, any evidence is admissible on the part of the plaintiff which would show the existence of such a partnership; and it would seem that the evidence here attacked would be entirely relevant, under the ruling in Dodds v. Everett-Ridley-Ragan Co., 110 Ga. 303 (34 S. E. 1004), wherein it was said: “The declaration of an alleged member of a partnership, in the nature of an admission that he was a member thereof, is admissible for the plaintiff on the trial of an action against the firm, to which the declarant has interposed the defense of fno partnership’ as to him.”
4. Exceptions are taken to the refusal to grant the defendant’s motion for nonsuit. At the time the motion was made, as appears from the record, the plaintiffs had introduced evidence tending to prove the account sued on, and also tending to prove the fact of partnership. This placed the burden on the defendant of disproving the account and also of showing that there was in fact no partnership, and it would have been error for the court to have granted a nonsuit. Besides, the merit of the ruling as to nonsuit is now unimportant, since the case went to the jury and the evidence as a whole suffices to warrant a finding for the plaintiffs.
5. Exceptions are taken to the following instructions of the court, on the subject of partnership: “If you find, from the evidence, that both parties, Mr. Cary and Mrs. Friese, had no written or parol agreement establishing or setting up any partnership between them, but you find, from a preponderance of the evidence, that they held themselves out to the world as partners, under the firm name and style of Friese Planing Mill Company, you should
6. Exception is also taken because the court charged the jury as follows: “If you find, from the evidence in this case, that these plaintiffs had filed a suit against these parties, involving the same subject-matter as this suit, and that the prior suit had been dismissed, and the plaintiffs, either themselves or their attorneys at law, had gone to an officer of the court—to the clerk of the court— and requested of him a bill of the costs that had accrued on the former suit, and they had in good faith paid the bill of costs as rendered them by the officers of this court, and had taken a receipt for the bill of costs, and they then instituted this second suit, after the payment of said bill of costs, you should find as to this feature of the case in favor of the plaintiffs.” The plaintiff in error is not in position to take exception to this charge. He filed his plea in abatement, setting up that the costs had not been paid in the former suit, and the burden was upon the defendant to prove the facts alleged in this plea. Upon a careful reading of the record we are unable to find even the slightest evidence of any kind that the costs had not been paid. In fact, all the evidence submitted on the
7. There was no testimony on the part of the defendant denying that the lumber which made up the account sued for was delivered to the Friese Planing Mill Company, and there was direct testimony for the plaintiffs that it was received by the defendants, and that they used it and accepted the benefits thereof. The testimony tended to show that the Friese Planing Mill Company succeeded the Friese Planing Mill, and that the lumber sued for was ordered by the Friese Planing Mill, but that when it arrived it was delivered to the Friese Planing Mill Company. The witness who was admitted to be the manager of both firms testified to these facts, and that the lumber was used by the Friese Planing Mill Company, and was accepted by them as a part of their assets. Under the evidence as a whole, the court did not err in charging
8. While the jury might, under the evidence, have found a dif-. ferent verdict, there was certainly sufficient evidence to authorize the verdict rendered, and this court will not interfere with their finding. Judgment affirmed.