Levy & Co. v. Alexander

| Ala. | Dec 15, 1891

COLEMAN, J.-

If J. D. Alexander was a party to the instrument offered in evidence, the argument of appellant to show that its terms are of such a character as to constitute him a partner in favor of creditors would be in point, and entitled to consideration. The construction of this instrument by the court did not exclude from the jury the consideration of other evidence, which tended to show that J. D. Alexander was a member of the. firm of D. C. Alexander & Go. Neither was there any error in the charge of the court which construed and declared the legal effect of the instrument offered in evidence as a copy of the original copartnership agreement. The testimony without dispute showed that the corpartnership agreement was in writing, and that the original had been lost. The testimony of the defendant tended to show that exhibit “A” was a true copy of the original agreement, and the testimony of the plaintiffs tended to show that it was not, and that it had other provisions. The charge of the court was simply to the effect, that “Exhibit A,” of itself, did not constitute J. I), Alexander a partner. Of the correctioness of this charge there can be no doubt. Standing by itself, and construed alone, that agreement was no more binding upon J. D. Alexander, than it was upon his counsel. As to him, it was strictly rev inter alios acta; and if there was no other understanding to bind J. D. Alexander as a partner, it could not be said in any sense that he was, inter sese, a partner. The first charge requested by plaintiff was properly refused.

Where one permits himself to be held out as a partner, and persons contract with the firm upon the supposed fact that he is a partner, he makes himself liable as such, whether in fact he be a partner or not; but, if the evidence shows that credit was given to the partnership in ignorance of this fact, and not upon the supposition or faith that he was a partner, then no such liability arises. — Ala. Fer. Co. v. Reynolds, 85 Ala. 23. The second charge asked by appellants, and refused by the court, is erroneous for two reasons. First, it seeks to fasten a liability upon J. D. Alexander, if he was held out to the public as a partner, whether it was done with Ms knowledge and consent, or without it. It must be done with his knowledge and consent, to render him liable. Second, because there is no evidence in the record to show that plaintiffs debt was con.tracted upon the faith that he was a partner, or that such information was ever conveyed to plaintiffs until after their debt was contracted. We have seen that the credit must be given upon the faith that he was a partner.

There is no error in the record. Affirmed.