28 Ala. 289 | Ala. | 1856
Individuals who would not be held partners inter sese, may become liable as partners quoad third persons. Hesketh v. Blanchard, 4 East, 144; Hazard v. Hazard, 1 Story’s C. C. Rep. 311; Story on Partn. § 60; Collyer on Partn. §§ 78-86.
The first question for consideration in the present case, is, whether, upon what appears in the record, the complainants have the right to treat the defendant as a partner in the company of James C. Watson & Co.
The bill states, among other things, that said company was formed “for the purpose of speculating in Indian lands, which were to be disposed of by the government of the
The defendant, in his answer, “ admits that the said James 0. Watson &.Co. was a company formed for the purposes alleged in said bill”, but “ denies that, at the time said contracts of purchase with James C. Watson & Co. are alleged to have been made, this defendant was a member of said company; and for answer states the following facts, upon information and belief: On the 28th August, 1'836, a contract of purchase was made and entered into by James 0. Watson, Edward Hanrick, Peter C. Harris, John Peabody, and William Walker, on the one part, and certain chiefs of the Creek Indians, aided by Gen. Jessup, for the purchase of certain lands known as' reverse contracts, in what was called Dr. McHen-ry’s District, for the sum of seventy:five thousand dollars. On the 28th day of April, 1837, the said James 0. Watson, Edward Hanrick, Peter C. Harris, John Peabody, and Wm. Walker, by his executor, Edward Hanrick, held a meeting at Columbus, Georgia, and adopted rules and regulations for said company ; at which Alfred Iverson was admitted as an original contractor, and was present. The fourth, fifth, seventh and eighth of said rules and regulations arenas follows: ‘ 4th.
The defendant does not pretend that he was, at any time, a dormant partner. He makes no defence. of that kind, nor does he plead or .rely on the statute of frauds. If, therefore, his. answer, when construed according to established rules, in connection with the bill, amounts virtually to an admission, either that the half share assigned to him by the aforesaid
The defendant does not, in his answer, say that he was not a partner in said company at some period prior to the 27th December, 1842, the time when the agreements with Grigg and Hardin were made. He does not even venture a plain and positive denial of the allegation that he was at that time a partner. His seeming denial of that allegation is carefully
If in his answer he had contented himself with a plain denial that he was a partner on the 27th December, 1842, it may be conceded that the complainants would then have been bound to overcome that denial by the testimony of two witnesses, or of one witness and some circumstance of corroboration. But the “ facts” with which he has accompanied and linked his seeming denial, and upon which he' has evidently based it, not only deprive it of all force as a real
We are constrained to put this construction on this answer, by well-settled rules. Where material matters are stated in the bill, which, prima facie, are within the knowledge, information, or belief of the defendant, if in his-answer he fails to deny them, or to express his belief of their falsity, and does not state that he cannot fo.rm any belief respecting their truth, they must be considered as admitted, without any order taking them for confessed. — McClain v. Waters, 9 Dana, 55; Bailey v. Wilson, 1 Dev. and Batt. Eq. Rep. 187. A vague manner of denial of such matters, is always received unfavorably. A defendant is not at liberty thus to put in issue allegations, which he may know, or fully believe, to be true. If he expresses himself obscurely, and leaves to the court the task of divining his meaning, the court adopts that construction of his language which is strongest against him. He cannot be allowed to shelter himself behind equivocal, evasive, or doubtful terms, and thus mislead the complainant; nor behind a literal denial which amounts to no more than a negative pregnant, or an evasion of the point of substance.— Hill v. Lackey, 9 Dana, 83; McClain v. Waters, and Bailey v. Wilson, supra; Brooks v. Byam, 1 Story’s Rep. 296; Deveraux v. Copper, 11 Vermont Rep. 104; Morris v. Parker, 3 Johns. Ch. Rep. 297; Smith v. Lasher, 5 Johns. Ch. Rep. 247; Talbot v. Sebree, 1 Dana, 56; Story’s Eq. Pl. §§ 854, 855; Bissel v. Bozman, 2 Dev. Eq. Rep. 163. Particular charges must be answered particularly and precisely. A general answer, even when it includes an answer to all the particular charges, is insufficient. — Wharton v. Wharton, 2 Sim. & Stuart, 235.
As the answer* does not pretend that the defendant was a dormant partner, nor that notice of any dissolution of the partnership was ever given, we hold it to be clear, that no dissolution of the partnership was effected by the relinquish
Our opinion is, that from a proper construction of the bill and answer, the fair conclusion is, that the complainants have the right to treat the defendant as a partner in said company, and to hold him to the responsibilities of such partner.
The bill states (among other things), “ that at the time the said agreements A and 0 were entered into between the said company and the said Grigg and Hardin, the said company held a claim on the said lands mentioned in said exhibits A and 0, by virtue of a contract made with the chiefs of the said Creek Indians, known and generally called- the Big Contract”; * * * “ that because of said agreements, the said company, under the circumstances, were botind in equity to obtain, if they could, with reasonable diligence, a patent for the lands named in said agreements, and to so arrange it that the same should enure to the benefit of your orators and oratrix, sub-purchasers under the said Grigg and Hardin as aforesaid.” The bill also states, that the defendant procured the patent to be issued to himself, and that he has sued the complainants for the lands.
The defendant, in his answer, admits “that it may be true that, by virtue of the ‘Big Contract’, the said James C. Watson & Co. had a claim upon said lands mentioned in said exhibits A and 0; but this defendant, not having access to a'list of the lands embraced in the said ‘Big Contract’, cannot now remember whether the said lands mentioned in said exhibits A and C are included in said list or not, and therefore cannot state what claim, if any, the said James C. Watson & Co. held upon said lands at the time the said agreements were entered into.. This defendant’s best recollection, however, is, that the said James C. Watson & Co. did, at one time, assert a claim to said lands, but that said claim was never established and approved, as required by the treaty ■ of 1832.”
There is nothing else in the answer which amounts even to
We must bear in mind, that we have already ascertained that the defendant must be regarded as a partner in said company, for all the purposes of this case. Regarding him as a partner, it must be presumed, in the absence of his statement to the contrary, that he had a belief either that the said lands were included in the ‘Big Contract’, or that they were not included therein; and that, if he had made any attempt to obtain access to the list of the lands embraced in the ‘Big Contract’, referred to in his answer, he could have obtained such access. He does not say that he has made any attempt to obtain such access, nor does he say that he does not believe the lands in controversy were not embraced by the ‘Big Contract.’ He says “ it may be true” they were embraced in it, but, unot having access to a list of the lands embraced” in it, “ he cannot now remember” whether they were “ included in said list or not, and therefore cannot state what claim, if any”, the company held on said lands. His best recollection, however, is, that the company did, at one time, assert a claim to said lands; and he seems careful not to say that the company ever asserted any claim other than under the ‘Big Contract.’ It was his duty, as a partner, to examine the list alluded to, before answering, or, at least, to have attempted to obtain access to it; and, if he failed to obtain it, to state the failure in his answer. — Earl of Glengall v. Frazer, 2 Hare, 99; Story’s Eq. Pl. § 855 a. It was his duty, if he did not believe the said lands were included in the ‘Big Contract’, to say he he did not believe they were included in it. He has not done so; and we feel bound to interpret his answer, in this respect, as an admission on his part that he did not mean to put in issue, as a matter of controversy in this cause, whether said company claimed said lands under the ‘Big Contract’, nor to ask for proof of the truth of the allegation of the bill, that the company, at the time the agreements A and 0 were executed, claimed said lands under the ‘Big Contract.’ — Brooks v. Byam, 1 Story’s Rep. 296; Story’s Eq. Pl. § 868 b, note 2.
Upon the case as presented by the bill and answer, the defendant must be regarded as a partner in said company at the time the agreements A and 0 attached as exhibits to the bill were made, and the lands mentioned in said agreements must bo regarded as embraced in the ‘Big Contract.’
The defendant attaches, as exhibit A to his answer, a copy of an agreement executed on the 20th January, 1840, by the original partners in said company, appointing James C. Watson trustee for said company, and conferring upon him certain authority as therein shown; and thereupon the defendant states, that he “ is advised and believes that the said James 0. Watson had no power and authority to sell, dispose of, or convey any land, so as to bind the members of said company, except those lands which might be patented to the said James C. Watson & Co., or to the said James C. Watson as trustee of said company; and that the contracts of purchase made with the said Grigg and Hardin are-not binding upon the members of said company;” and “ that the said James C. Watson was not authorized to sell the land specified in said agreements” A and C attached to the bill.
It is unnecessary now to decide, whether or not, in this particular, the defendant was correctly “ advised”, or whether his belief, founded on such advice, is correct. For, conceding that the agreement of the 20th January, 1840, did not authorize Watson to sell the lands in controversy, nor any land, until a patent for it had issued, nor to enter into the agreements with Grigg and Hardin shown in exhibits A and G attached to the bill; yet, as the defendant is to be treated as a partner in said company, and the lands in controversy are to be treated as embraced in the ‘Big Contract’, and as
There is no ground for suppressing the depositions of Peter C. Harris and Littleberry Strange. The exception taken by defendant to the answers of said Harris and Strange, to the 4th and 6th direct interrogatories, is founded on the assumption that Watson had no authority except such as was in writing, and shown in the agreement of the 20th January, 1840. This assumption is not proved nor warranted by the evidence. And, as a previous verbal authority was sufficient, it certainly was competent for the complainants to prove by Harris and Strange, who were partners in said company, that Watson had authority to enter into the agreements on which complainants rely. The chancellor erred in sustaining the exceptions relating to these answers of Harris and Strange.
We have now noticed what we consider the most material questions decided .by the chancellor; andas to them we think he has erred. We will not extend this opinion by noticing the other questions decided by him; but, out of abundant caution, shall leave them as open if they had not been decided at all. For the errors committed on the points hereinabove considered, and on which the conclusions of the chancellor are in conflict with those above expressed by us, his decree is reversed, and the cause remanded, at the costs, of the appellee.