Compton v. Smith, 120 Ala. 233

Compton v. Smith

120 Ala. 233 | Ala. | 1897

HARALSON, J.

The complaint in the suit was by John W. Smith, the appellee, against the appellants, D. O. Compton and F. M. Compton, partners doing business under the style of D. C. Compton & F. M. Compton. The summons follows the complaint. The notes sued on were signed by the defendants individually, and there is nothing on their face to indicate a partnership between them. This, as we have held, made it a suit against these parties as individuals and not against them as partners.—Baldridge v. Eason, 99 Ala. 516.

1. The real issue in the case, under the plea on which it was tried, was whether or not the defendant, F. M. Compton, the wife of the other defendant, D. C. Compton, signed the notes sued on as security for her husband.. The contention on the part of the appellee, resisted by the appellants, was, that Mrs. Compton and her said husband were partners, and signed the notes together as such, and, therefore, she was with him equally bound. Mrs. F. M. Compton filed a plea of coverture and suretyship, — “that at the time of the execution of the instrument sued on, she was a married woman, the wife of D. C. Compton, and that the only consideration for the execution by her of said instruments was to secure a debt contracted by her husband.” Under the statute, it is provided, that “the wife shall not, directly or indirectly, become the surety of the husband',” (Code, 1896, § 2529 [2349] ) ; and if she signed these obligations as surety, she is not bound on them. If she signed them together with her husband, and they were partners, she is bound.—Belser v. The Bank, 105 Ala. 514; O'Neil v. Brewing Co., 101 Ala. 383, 389; Reed Lumber Co. v. Lewis, 94 Ala. 626; Schlapback v. Long, 90 Ala. 525.

On the examination of Mrs. Compton for defendants, she was requested by their counsel, to “state whether or not she signed the notes as her husband’s security,” *237The plaintiff objected on the ground that the question called for a conclusion of the witness, and the objection was sustained. In this the court erred. Whether one signed a note as surety or not, — especially when the fact of suretyship does not appear on the face of the obligation,’ — is a fact which may be shown by extrinsic parol proof.—Bruce v. Edwards, 11 Stew. 11; Branch Bank v. James, 9 Ala. 949; Summerhill v. Tapp, 52 Ala. 227; Howle v. Edwards, 113 Ala. 187; 1 Brandt on Suretyship, § 29. And it has been held, when a promissory note is held by the payee, and it does not on its face show the fact of suretyship, but it is proved that one of the makers was only a surety, that it will be presumed the creditors knew of the suretyship.—Ward v. Stout, 32 Ill. 399; Cummings v. Little, 45 Me. 183; 1 Brandt on Suretyship, § 33. We need not for the purposes of this case, commit ourselves to this last proposition, but simply hold that under the facts of this case, Mrs. Compton should have been allowed to prove that she was a mere surety on the notes. She and her hqsband both swore vhat they were not, and never had been, partners.

2. The plaintiff’s proof tending to show that there was a partnership between the said parties, was, in substance, that D. C. Compton, the husband, had been procuring the advances from plaintiff for a long time, and he refused to make further advances to him, and just prior to the time of advancing to the defendants jointly, D. C. Compton came to him for further advances, and he declined to furnish them, and Compton stated to him that he and his wife were going to farm jointly, and they would execute joint mortgages ; that subsequently, when the notes and mortgages were executed, both defendants being present, he stated to Mrs. Compton what had passed between him and her husband, and that he, the plaintiff, would not advance further unless they executed joint notes and mortgages to secure the same. Whereupon they signed the notes sued on and mortgages on personal property to secure them. Two of the three notes sued on were dated April 27th, 1894, and the other, June 20th, 1895. It was shown, that until the latter part of that year, 1895, the account for advances had been kept on the books of plaintiff against D. C. Compton alone, when plaintiff added to his name the *238words, “and wife,” so as to make the caption of the account to appear as charged against “D. C. Compton and wife,” and that he did not know why he had made this change, but it was probably done upon the advice of an attorney. The mortgages executed to secure the notes bore the same date of the notes, and purport to have been made for advances in necessary provisions for the mortgagors and children, and for mules, etc., obtained bona fide for the purpose of making a crop. They were made in the joint names of the defendants, signed by them respectively, do not on' their face indicate that they were made by a partnership, and were introduced without objection.

3. There was no error in charge 1 requested by defendants and refused. The defendants were sued as individuals, but it was on proof of the fact of partnership that plaintiff relied for recovery against the defendant, Mrs. Compton. There was proof on the part of plaintiff that there was, and on the part of the defendants that there was not, a partnership, and the real issue on which plaintiff relied for recovery against Mrs. Compton was the existence vel non of a partnership between her husband and herself, and that the notes sued on were executed by the partnership. The first part of said charge contains an undisputed proposition of law, as introductory to the real instruction,contained in the charge, viz., that unless the jury believed that a partnership existed between defendants, the verdict should be in favor of. Mrs. Compton.

The mortgages were written instruments, which, on their face, it was the province of the court to construe. The second charge was no more than a request that the court should charge, that these mortgages, of themselves, did not show a partnership, which, under the authority of Levy v. Alexander, 95 Ala. 101, we apprehend was a correct instruction It is not subject, as contended by appellee, to the vice of singling out and laying stress on a part of the evidence, without reference to other parts of it.

We scarcely need to add that the general charge, No. 3, was properly refused.

Reversed and remanded.