Guin v. Grasselli Chemical Co.

72 So. 413 | Ala. | 1916

Lead Opinion

ANDERSON, C. J.

(1) Defendant J. C. Guin’s plea D was a good plea of non est factum and was in Code form and was a good answer to the counts on the notes, and the trial conrt erred in sustaining the demurrer to same.

(2) Plea 10, by J. C. Guin, denying the partnership, was to each count separately and severally, and, whether a good defense or not to the counts on the notes (Bank of Waynesboro v. Healing Springs Company, 163 Ala. 495, 50 South. 882), was good to the common counts, and the trial court erred in sustaining the demurrer to same. We cannot say that the defendant J. C. Guin got the benefit of same, under the general issues; as the plaintiff did not have to prove the partnership unless denied by a special verified plea. — Code 1907, § 3969. Nor can we say that the error as to plea 10 was cured by overruling the demurrer to plea 14; as the latter was broader than the former.

(3, 4) The declarations of one person as to the existence of a partnership between himself and another person are not admissible evidence against the latter to prove the fact of partnership, unless they were made in his presence or fall within the exception, to the general rule excluding hearsay evidence. — Humes v. O’Bryan, 74 Ala. 64. While the statement of Lee Guin to Troy that he and J. C. Guin composed the firm would be inadmissible if it stood alone, yet the trial court cannot be reversed for this ruling when'the statement is taken in connection with the further facts that the said Lee Guin referred the salesman Troy to J. C. Guin, whom he went to see, and told that he had been referred to him by the said Lee in reference to purchasing the fertilizer in question and the conversation then had with said J. C. Guin with reference to the firm of Guin Bros, and the purchase and shipment of the goods in question.

5, 6) The existence of partnership cannot be proved by general repute; yet, when the fact is otherwise established, general notoriety in the neighborhood may be proved as competent evidence, to charge a resident in such community with knowledge of it. — Tenn. Co. v. Linn, 123 Ala. 112, 26 South. 245, 82 Am. St. Rep. 108; Humes v. O’Bryan, 74 Ala. 64; Woods v. Montevallo Co., 84 Ala. 564, 3 South. 475, 9 Am. St. Rep. 393. The defendant J. C. Guin admitted the previous existence of the partnership, and the fact that there was a general rumor in the neighborhood where he resided that it continued to exist was a circumstance to show that he knew of same and held or permitted himself to be held out as a partner, and took no steps to counteract or repudiate the general report. The trial court did not commit reversible error in permitting the witness Clardy to testify that G. L. and J. C. Guin were looked upon and generally regarded as partners in the neighborhood subsequent to the claimed dissolution. .

(7, 8) Charge 15, given for the plaintiff, misplaced the burden of proof; as the existence of the partnership was denied by a sworn plea, and that put the burden of proving the partnership upon the plaintiff. — Code 1907, § 3969. Morever, had there been no special plea denying the partnership, it would have only been incumbent upon J. C. Guin to show he was not a member of the firm, and, if he did this, it would have been incumbent upon the plaintiff, in order to hold him liable to prove that he held himself out or permitted himself to be held out as a partner.

(9) Charge 14, given for the plaintiff, states the law. Where a partnership has been proven to exist, its existence will be presumed to continue until a dissolution is proved. — Reybold v. Dodd, 1 Har. (Del.) 401, 26 Am. Dec. 401; Irby v. Brigham, 9 Humph. (Tenn.) 750. Plaintiff’s given charge 13 could have well been refused, as it falls short of charge 14, and ignored the defendant’s proof of dissolution and was calculated to mislead.

The judgment of the circuit court is affirmed as to G. L. Guin, and is reversed and remanded as to the administrator of J. C. Guin. — Steed v. Barnhill, 71 Ala. 157.

Affirmed in part, reversed in part, and remanded.

McClellan, Sayre, and Gardner, JJ., concur.

---

Rehearing

ON REHEARING.

ANDERSON, C. J.

(10, 11) Upon a reconsideration of plea 10 we are of the opinion that the trial court did not err in sustaining the plaintiff’s demurrer to same. It did not deny the existence of the partnership when the debt was contracted or when the note was given, but “when the cause of action arose.” J. C. Guin may not have been a partner when the cause of action arose, but may have been when the debt was contracted, or when the note was executed. The latter- part of the plea does not cure this defect. It says that the plaintiff had notice that he was not a partner when the debt was contracted, but does not aver as a fact, that he was not a partner at the time, and pleading must be construed more strongly against the pleader on demurrer.

The original opinion is to this extent modified, and the application for rehearing is overruled.

McClellan, Sayre and Gardner, JJ., concur.