52 Ala. 195 | Ala. | 1875
Appellants sued Cornelius Rea, John Huguley and William Stone, as partners under the firm name of C. Rea & Co., for the amount of a promissory note made by that firm. Rea and Huguley. pleaded the general issue, and Stone a special plea under oath, that he was not a member of that partnership and had not executed the note, or authorized any one else to do so for him.
On the trial, the note sued on was produced, and proof made that Rea and Huguley constituted the firm of C. Rea & Co., and that Stone was not a partner. Thereupon the court “ charged the jury that as the proof showed that Stone was not a partner of the firm of C. Rea & Co., plaintiffs could not recover from any of the defendants in this action.”
To this charge plaintiffs excepted, and also to the refusal of the court to charge that if the jury believed the evidence, plaintiffs were entitled to a verdict against Rea and Huguley.
Plaintiffs took a nonsuit with a bill of exceptions, and thereupon brought the cause by appeal to this court.
The counsel on both sides, though citing in their briefs other sections of the Code, have wholly overlooked one which is applicable to and decisive of the case. Section 2554 (2156) of the Revised Code provides that: “ When a suit is instituted against several defendants, whether sued as partners or otherwise, the plaintiff may recover against one, or more, but is liable for costs to those against whom he does not obtain judgment.”
The judgment is reversed and the cause remanded.
