95 Ala. 324 | Ala. | 1891
This suit was founded on an account for merchandise sold and delivered by Eartherly Hardware Company, a mercantile copartnership. The bill of exceptions affirms that, if the defendant was not entitled to credit on this account, for a certain mare which'.he let Harry Jones, one of the plaintiffs, have, “the plaintiffs were entitled to recover; but, if defendant was entitled to this credit, then defendant was entitled to recover.” Under tbis admission, the plaintiffs were relieved of all duty to make out their case, or to make any proof. The burden was cast' on the defendant to prove his defense; and if he offered no testimony, or insufficient testimony to establish his defense, the verdict and judgment should have been for plaintiffs. So, the legality and sufficiency of defendant’s testimony were the only inquiries raised on the trial.
It is not contended that, as a mere cross-demand against one member of the firm, defendant’s claim could avail as a set-off against a partnership demand. Such contention, if made, has too often been disallowed by this court to require further notice.— Watts v. Sayre, 76 Ala. 397, and authorities cited.
The question then is, whether there was any testimony tending to prove an agreement to receive the agreed price
If the rule were such that one dealing with an individual partner, in ignorance that he was employing partnership effects for individual purposes, would be protected, that would not help the present appellant. He himself testified that Jones informed him that he was purchasing the mare for his wife’s use. This was notice that the purchase was not made for the use of the partnership.
We need not inquire whether Jones’ deposition was rightly suppressed. It is copied in the record, and contains nothing which could have benefited Oown. It is not error to reject immaterial testimony.
Interpreting the testimony with the most liberal intend-ments in favor of the appellant, it contains nothing from which the jury, under proper instructions, could have found
Having ascertained that the court would have committed no error if the genei’al instruction to find for the plaintiffs had been given without hypothesis, it follows that any error that may have been committed was harmless. And this principle applies to any irregularity that may have been fallen into in recalling and re-instructing the jury. It was at most error without injury. — Crutcher v. M. & C. R. R. Co., 38 Ala. 579; 3 Brick. Dig. 405, § 20.
Affirmed.