100 So. 89 | Ala. | 1924
This is the second appeal. Eggleston v. Wilson,
The suit was on account, account stated, etc. It was alleged by way of replication to defendant's pleas that defendant Wilson held himself out to plaintiff as a partner in the business conducted in the name of Day Night Auto Repair Company, the purchaser of the merchandise in question, and on said representation plaintiff relied in making sales thereof.
The issues of fact are somewhat similar to those on which the trials were had in Sorrell v. Scheuer,
The evidence being in conflict on the questions (1) whether or not Wilson was a member of said partnership, and (2) whether or not he held himself out in such wise as to subject him to a partnership liability, they are jury questions. Affirmative charges requested by plaintiff were properly refused. McMillan v. Aiken,
Refused charges 6 and 7 should have been given. However, they were covered by instructions contained in the oral charge. So, also, were refused charges 11 and 13. Charge 16, requested by plaintiff, was properly refused. It was an invasion of the province of the jury. There was a tendency of evidence to the effect that Wilson was not a debtor of plaintiff, or a member of the partnership, and the charge sought to fasten liability upon him as a matter of law, merely because plaintiff mailed to him a statement of account which was not thereafter returned, or no objection made within a reasonable time. Such action on Wilson's part, if he received the statement, might be considered by the jury, with the other evidence, in determining whether he was indebted to plaintiff or liable as upon a partnership debt. It was within the province of the jury to decide whether such statements were received by Wilson, and, if so, whether his silence was a sufficient admission of his dereliction or liability to plaintiff, when considered with the other evidence, on which to return a verdict against him.
Plaintiff's refused charge 10 was not abstract. The account on which suit was brought was contracted in October and November, 1919, after plaintiff's salesman visited the place of business of the partnership. That salesman testified that during the month of October, and before the sales were made to the Day Night Auto Company, he saw C. R. Vann, and the latter represented to him that E. W. Wilson, the defendant, was his partner, doing business under said firm name, and that fact was confirmed by Wilson. The witness said that he "went to see Mr. E. W. Wilson about credits on this goods. He told me that he was to put up all the money and Vann was to be the mechanic and run the place"; and that Wilson would pay for goods purchased by Vann, and further stated or admitted that he was a partner in the business. These inferences of fact may be found in defendant's answers to interrogatories propounded under the statute and offered in evidence; that he (Wilson) was to furnish Vann the "necessary money," and the latter had agreed to pay Wilson one-half of the amount he (Vann) took in until he paid $1,000. In the refusal of plaintiff's charge 10 reversible error was committed, as it was not fully covered in the oral charge.
As has been indicated, a jury question was presented by the conflicting tendencies of evidence — that tending to show plaintiff duly addressed and mailed a statement of the account on which the suit is brought and wrote letters to defendant Wilson requesting payment of the indebtedness, and no reply was made by defendant; that for defendant to the effect that the same were not duly addressed to him or received, and that he did not get any mail from the office or mail route shown to have been employed by plaintiff for foregoing communications to defendant. Hence charges 3, 9, and 15, requested by plaintiff, were properly refused.
It was indicated on former appeal that the judgment rendered in justice court in attachment, culminating in personal liability, was properly excluded when offered as evidence in the circuit court; no service of the summons was shown by the return to have been made upon the defendant Wilson. The court properly refused to allow A. C. Ford, to testify that he served the process on Wilson, since this was, in effect, a contradiction of his return or failure thereof shown by the process.
After the demand for production of correspondence between plaintiff and defendant, and refusal or failure to produce, secondary evidence was permissible of the contents of said documents that were material. Sorrell v. Scheuer,
Plaintiff sought to show that by "common repute" or "common report" defendant was regarded as a member of the partnership. In this connection it is pertinent to inquire if defendant's given charges 1 and 3 unduly limited the plaintiff in the nature and degree of proof he might offer under the two issues of fact being tried.
The cases in this jurisdiction declare in general terms (1) that, if an actual partnership exists, that fact is sufficient to charge its members with a partnership liability, without regard to what may have been the reputation or common report in that community as to whether or not a designated person was a partner therein; and (2) that, where it is sought to impose a partnership liability by way of an estoppel, the party sought to be subjected to such liability (A) must have "held himself out as a partner," and (B) he who seeks to so hold that other liable for holding himself out as a partner must have dealt with the partnership upon the faith of such other person being a member thereof. It follows that "common reputation" is not admissible to establish the existence of a partnership between individuals. Carter, Hogan Plowman v. Douglass,
"In reaching this conclusion we have given careful attention and study to only the legal evidence in the case, leaving out of view the testimony of those witnesses who testified only as to their general understanding or opinion concerning the partnership."
If the partnership is established by independent testimony to have been composed of the alleged members, the necessity of knowledge thereof, to enable one dealing with the partnership to hold its members liable, is not required, for members are subject to individual liability for partnership debts under the terms of law having application. The statements contained in Humes v. O'Bryan Washington,
It is then established by this court "that one seeking to impose a partnership liability upon another because of so holding out shall have dealt with the partnership (1) upon the faith that the other was a member" (Marble Son v. Lypes
Co.,
Evidence of common reputation in that neighborhood (1) was not competent evidence to show that plaintiff (not of that community) had notice of the members of the partnership, but (2) was competent as tending to show that defendant knew that Vann was holding him out as being a partner. There was reversible error in the exclusion of the evidence.
The tendencies of the evidence before the jury were threefold, viz.: (1) That defendant Wilson was a partner in said firm before and at the time the credit was extended it by plaintiff; (2) that defendant held himself out generally as a partner with a knowledge of the fact that the partnership was being dealt with on the faith of his being a member; and (3) that defendant so acted, and that statements made by him to plaintiff's salesman, with reference to the particular sales to be made to the partnership, were such as to estop him from denying his liability as a partner. It was therefore error to give, at defendant's request, charge 3. It excluded the inference that might be drawn from the evidence — that defendant held himself out generally as a partner. That is to say, that he was estopped from denying (A) that he did not know he was being held out by Vann as a partner, or (B) that plaintiffs' agent making the sale did not deal with the partnership, in taking the order, on the faith that Wilson was a member thereof. That sales agent (Riddle) of plaintiff had the right to act in the premises, though he did not "communicate to plaintiff" what statements Wilson had made to him.
For the purpose of another trial, we may add that proof of a partnership, and who compose it, must be made, as other material facts are proved, by conduct, control, conversation, or other relevant facts showing the relation, or that a person has permitted himself to be trusted and treated as a partner, may be shown as we have indicated. Such are among the pertinent questions by which partnership liability is established. Alexander v. Handley, Reeves Co.,
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
