102 Ala. 570 | Ala. | 1893
Case by appellee, Hill, against appellants, Knard and Bain, for negligently killing plaintiff’s horse by running a hack and team against him. The main issue tried was the liability vel non of defendant, Knard, for the results of the negligence which the evidence tended to establish, causing the injury ; the solution of which depended upon whether or not he, Knard, was interested, with Bain, in keeping and carrying on the livery stable, wherein plaintiff’s horse was being kept when he was killed. The bill of exceptions contains all the evidence. We have examined it critically, and are of the opinion that there is none tending to show that Knard had any connection with, or interest in, the stable, which could impose any liability upon him for the negligence of Bain, or the servants employed in and about the stable, resulting in the injury to plaintiff’s horse. The evidence upon this subject is as follows: Robert Ramsey testified for plaintiffs that he went to the stable with others shortly after the injury occurred and saw the horse with the wagon or hack pole run through his body. Efforts were being made for the relief of the animal, and he says that Knard was there and “furnished water, towels and some turpentine for the horse from his store. He told us to come to his saloon and get water, towels and turpentine, if we wanted them, and any thing we needed. He did furnish water, towels and turpentine and offered to do anything he could for the horse ; he seemed to hate it very much.” Witness never knew of any charge for the things. He also testified : “I usually put up at that stable when I came to town; it was always my understanding that it was Knard’s and Bain’s stable and we put up at it as such. It went by that name in my country. ” (Witness lived 18 miles from Tuseumbia, where the injury occurred.) “I considered it Knard’s and Bain’s stable. My deal
Defendants introduced two witnesses, who testified that they were well acquainted with the stable and had had many transactions in connection with it. One was the blacksmith who did all the horse shoeing for the stable ; the other was a horse trader, living in the country, who patronized the stable largely, and had made many horse trades there. They both testified that it was Bain’s stable ; they had all their transactions there with him ; that Knard had nothing to do with it, never held himself out.as having any interest in it. Bain paid all the bills that were paid for horse shoeing; they were all charged to him. Knard and Bain both testified emphatically and fully that K. had no interest in or connection with the stable business whatever , except that he held a mortgage on Bain’s property in the stable to secure a debt for some horses and' vehicles he sold Bain when he, Bain, began the stable business. The mortgage was produced and put in evidence. That the stable belonged to K. and he rented it to Bain at $10 per month and collected the rent; that he had no interest in the business or the profits or losses arising therefrom. Knard frequently traded for and bought horses, and kept his horses, including his riding horse, at Bain’s stable, and
First. Common reputation can not be considered to establish the fact of partnership. — Carter v. Douglass, 2 Ala. 499; Humes v. O’Bryan, 74 Ala. 64; Marble v. Lypes, 82 Ala. 322; Tanner Engine Co. v. Hall, 86 Ala. 305. In order to bind one as a partner, in favor of a third person, when he was, in fact, not such, he must, by his conduct, have held himself out as a partner, and the plaintiff must have been misled, by such conduct, into his dealing with the supposed partnership. No extent of rumor or reputation, which the supposed partner had not brought' about by his own conduct, can affect him ; and this conduct must be proved by the party complaining, and that he was misled by it. The present plaintiff testifies, unequivocally, that he knew of no act, fact or circumstance indicating to him that Knard was interested in the stable business. This eliminates the whole subject of Knard’s liability by reason of having held himself out as a partner, and all the instructions the court gave the jury on that subject were mere abstractions and improper. Then, let us examine the other propositions, dissociated from this immaterial evidence of reputation, and see ii there is any tending to establish the partnership, as a fact; and in this connection, it is proper to consider any other undisputed fact essential to complete the proposition . Then, second: Knard held a mortgage on all Bain’s stock in the stable ; he sold one of the horses in 1887 to Hurst, and said it was his and Bain’s, wherefore the inference that he and Bain were partners in the livery
Beversed and remanded.