68 Ala. 453 | Ala. | 1880
It is a general rule of law relating to partnerships, that each partner is the agent of the firm, as to all transactions coming within the' scope of the partnership business. This general authority is to be tested by the nature of the particular business to which the partnership relates, and its ordinary usages.—1 Collier Part. § 412, p. 648. As between the partners themselves, this authority may be limited or controlled by special agreement; but, as to third persons, having no notice of such limitation, the partnership would be bound by the exercise of such general authority by any one member of the firm.—5 Wait’s Act. & Def. p. 106. We think that Winslett, prima facie, had a lawful right to bind the firm of Winslett & Co., of which Clark is shown to have been a member, for any necessary provisions or supplies furnished to carry on the partnership business, which business included the operation of a saw-mill, a gin, and a grist-mill.—Johnston v. Dutton, 27 Ala. 245, 251; Smitha v. Cureton, 31 Ala. 652; McCrary v. Slaughter, 58 Ala. 230.
If one partner borrows money, or purchases merchandise, upon his own individual credit, and afterwards applies such goods or money to the uses of the partnership, the creditor can not, for this reason, have an action against the firm. Story on Part. § 135; Parsons on Part. p. 105, note (F). But this principle applies only to those cases where the credit was given exclusively to the partner making the purchase, and it was not intended that the other members of the firm should be looked to for payment.—Smith v. Durrett, 2 Amer. Dec. 714. And it has been accordingly held, that even where there is a written contract in the name of one partner, evidence aliunde may be received, to prove that it was a partnership, and not an individual obligation.—Snead v. Barringer & Rhodes, 1 Stew. 134. And again, where goods were charged on the books to one partner, parol evidence was held admissible, to show that they came to the use and possession of the firm.—Richardson v. Humphreys, Minor, 383; Lamb v. Brolaski, 38 Mo. 51. The question is simply, to whom was the credit given ; and this is one of fact, to be determined by the jury, under all the circumstances of the case.—Webster v. Stearns, 44 N. H. 498.
These principles have application in this ease only to those articles purchased by Winslett for the firm of Winslett & Co., necessary for conducting the mill, ginning, and grist business. But the partnership of Winslett & Co., of which the appellant, Clark, was a member, would not be responsible for such goods as were purchased by Winslett for his own personal use and that of his family, and which were in no wise connected with the partnership business. As to these
There are shown to be still other items in the account due Taylor & Co., which were purchased for and used in running the farm of Clark. Winslett was not a partner in this business, but was a mere agent of Clark, and his authority to make such purchases is denied. The law is well settled, that an agent, like a partner, can bind his principal only so long as he acts within the scope of his authority. But one who deals with a mere agent is bound, at his peril, to know the extent of his real authority, while, in dealing with a partner, he may trust to the apparent scope of his authority as tested by the nature of the business and its usages.—1 Collier Part. § 412, p. 648. Yet the authority of an agent may be inferred from his previous employment in similar transactions known to the party with whom he contracts or deals; or it may be shown from subsequent acquiescence of the principal, deliberately made with such knowledge of the facts as to constitute a ratification.—Fisher v. Campbell, 9 Port. 210; 1 Brick. Dig. p. 59, § 98. Where, however, a direct benefit is received from an unauthorized act of the agent, a failure of the principal to dissent may be construed into a ratification.—Mobile and Montgomery R. R. Co. v. Jay, 65 Ala. 113. Prima facie, Winslett had no authority to bind Clark for farm or plantation supplies, and the burden of proof was on the appellees, Taylor & Co., to establish such authority.—Fisher v. Campbell, supra.
It is objected that this account, contracted by Winslett in his own name, was allowed to be introduced as a set-off against the plaintiff in this action. The plaintiff sues as the assignee of Winslett & Co., being himself also a member of this firm. The rule is, that, in an action by a partnership, the individual debt of a member of the partnership, due by him to the defendant, is not a legal set-off.—Evans v. Sims, 37 Ala. 310; Ross v. Pearson, 21 Ala. 473; Water. Set-Off, § 213. But it would be otherwise, where a usage of the firm to the contrary is proved, establishing a clear and uniform practice to allow such sets-off; or where the consent of all the partners is satisfactorily shown.—Hood v. Riley, 15 N. J. (Law) 127; Water. Set-Off, § 214. If the objection had been confined to that portion of the account for which Winslett seems alone to be liable, it should have been sustained. But, in as much as there -was evidence tending to show Clark’s
_ The declaration made by Winslett, at the time he opened the account with Taylor & Co., that he was authorized by his partner, Clark, to open it in his oiun name, was properly admitted. It was cotemporaneous with the transaction, and tended to explain it, thus constituting a part of the res gestee. It was very pertinent to show the important fact, that the parties may not have intended to give the exclusive credit to Winslett, and to explain why. the merchandise was charged to him on appellees’ books. This declaration was not competent to prove the existence of the partnership, unless made in the presence of the other partner.—Cross v. Langley, 50 Ala. 8. But the fact of the partnership being first proved, as it was by Winslett, the declaration was good also as an admission against the other partner, as to any matter within the scope of the partnership business.—Rhodes v. Lowry, 54 Ala. 4.
We cannot see that the court erred in admitting in evidence the account against Jack Lewis, a tenant of plaintiff. This item was shown to the plaintiff before the suit was brought, and he verbally agreed to pay it. The objection that the promise was not in writing, was not a valid one to its introduction in evidence. If the plaintiff desired to avoid its payment, he should have done so by setting up the statute of frauds in his replication. Unless specially pleaded, this defense is generally considered as waived.—Patterson v. Ware, 10 Ala. 444; 7 Wait’s Act. & Def. p. 2, § 1.
The fact that plaintiff promised to pay a private account of Winslett, due by him to one Eoudet, was irrelevant, and should have been excluded, if objected to on this account. But. the objection interposed, that the promise was not in writing, was insufficient, and was a waiver of all other grounds not specified.
The question put to the witness Turner, as to whether the plaintiff ever disavowed, or made objection to the crediting of Winslett’s account on defendants’ books, was improper, and should have been excluded, in view of the fact that there was no evidence showing that he knew of such credit at the time to which the question relates, nor was there any proposal, at the time of its introduction, to so connect it. One cannot disown or ratify a transaction, of which he is shown to have no knowledge. The question assumed that some evidence was before the jury tending to prove such knowledge. Without such predicate, the question was irrelevant and foreign, and the answer tended to mislead the jury.—Hewitt v. Clark,
There are some other exceptions to evidence, which we need not discuss in detail. We have examined them, and do not think they are well taken.
The judgment of the Circuit Court is reversed, and the cause is remanded.