31 Ala. 13 | Ala. | 1857
— The charge refused by the court asserts, in effect, the following proposition : The plaintiff, having built the mill described in the contract, and discharged the duties devolved upon him by the contract, may recover the value of his labor on the mill at the time of the sale, if the defendant, making no reservation of the plaintiff’s rights under -the contract, sold the mill to Thomas, and the plaintiff, knowing of the sale, was only willing that defendant should make it, provided he (plaintiff) could have the same arrangement with Thomas which existed between him and the defendant, which arrangement Thomas refused to make. This charge assumes the existence of the contract; and there is no impropriety in the assumption, because an admission of it is implied from the pleadings. The charge makes the defendant’s liability result from a sale, when the plaintiff was willing to it only upon a certain condition which did not exist. 'Whether or not the liability does result from a sale under such circumstances, depends upon the question of plaintiff's right to sell without the consent of the defendant. The contract provides, that either party, wishing to sell “his interest,” shall give the other the “refusal of said interest, and, in the event they cannot agree, they will refer the matter to disinterested persons to arbitrate.” Erom this clause of the contract we understand, that the parties intended to reserve to themselves respectively a right to
The charge asked also lays down, as a measure of the recovery, the value of the plaintiff’s “labor that was on the mill when sold.” The injury to the plaintiff by a sale, when he had been for some time receiving the benefit of the contract, was the value of the rights under the contract of which he was deprived by such sale. We do not think the plaintiff took by the contract an interest in the freehold of the land upon which the mill was situated. His interest was a mere right to such use of the mill, access to it, and occupation of it, during the continuance of the partnership, as were necessary to enable him to discharge the duties imposed, and to receive the benefits provided for him, by the contract. The defendant, who was the owner of the land upon which the mill was situated, had the power, by a sale of the land, to transfer the mill to the ownership of a third person. This sale and consequent transfer would necessarily terminate the partnership. The mill, the entire.subject-matter of the partnership, was gone by the sale. — See Collyer on Partnership, 100, § 115; Story on Partnership, 438, § 307. If the partnership was dissolved by the sale of the defendant in violation of his contract, the plaintiff loses all the bene
The court did not erf in excluding proof of defendant’s statement to the plaintiff', that if a sale was made to Thomas, he would make the same agreement with the plaintiff which existed between the parties to this suit. This proof might have been competent under an issue as to whether or not the plaintiff’s consent to the sale was fraudulently procured; but such is not the issue here. The defendant pleaded the plaintiff’s consent. The record does not show any replication to the plea, or any issue taken on it. We cannot intend that the plaintiff replied to the plea of consent fraud in its procurement. Unless we could aid the appellant, by making through judicial intendment a replication for him, we could not hold the testimony offered relevant.
The defendant asked Thomas, his vendee, when testifying as a witness, “what interest he bought when he traded with the defendant.” The witness answered the question, stating that “he only bought the defendant’s interest.” The plaintiff objected generally to the question and the answer, and excepted to the overruling of the objections. If the evidence in this case had been merely illegal, because there existed written evidence of the same matter, it would have been necessary to have pointed out to the court the objection to it. The evidence was upon its face illegal, without reference to any extrinsic fact,
Eor the error in the admission of this last named evidence, the judgment of the court below is reversed, and the cause remanded.