122 Ga. 715 | Ga. | 1905
The firm of W. R. Murphey & Company was composed of W. R. Murphey, J. T. Murphey, and others. This firm was largely indebted to Ambrose Murphey, and in 1885 the members of the firm sold out its business to him in part payment of its indebtedness to him. A partnership agreement was entered into on August 31, 1885, between J. T. Murphey and Ambrose Murphey, by the terms of which the latter was to furnish the capital, to consist of the depleted stock of goods of W. R. Murphey & Company, valued at $4,730, and other goods to supplement the stock, not to exceed $2,500, in value. The stock of merchandise, as thus supplemented, was to be the separate property of Ambrose Murphey. The storehouse was also to be furnished by him. J. T. Murphey was to personally superintend the business, keep the books, buy all goods, and hire and pay such assistants as might be necessary to carry on the business. No firm debts were to be ■contracted beyond the supplemental purchase of $2,500 of goods, ■except by the express agreement of both partners; nor were any
Auother exception of law filed to the auditor’s report was that he “ erred in not passing upon the objection of the defendants to the testimony of Ambrose Murphey, which was that he was an incompetent witness for the reason that Bush, the opposite party, was dead.” What has just been said in regard to the competency of T. E. Murphey as a witness and the ruling of the auditor in regard thereto disposes also of this exception.
The plaintiff excepted to the ruling of the auditor that T. E. Murphey “ was incompetent, on account of the death of W. H. H. Bush, to testify to anything except what would be contradictory to the evidence of Bush delivered at a former trial of the case, a brief of which was introduced in evidence before the auditor.” How this ruling operated to the prejudice of the plaintiff does not appear, as the exception taken to the auditor’s report does not disclose what testimony the plaintiff sought to elicit from the witness in addition to that which the auditor admitted. This being so, neither the trial court nor this court could undertake to say that the ruling of the auditor was attended with any injury to the plaintiff. Allen v. Kessler, 120 Ga. 319.
Counsel for the defendants insist that even though Ambrose Murphey may not have actually known of the arrangement with J. T. Murphey under which Bush bought the goods, yet the books of the firm disclosed the transactions, and Ambrose Murphey might have known, was bound to take cognizance of the facts, and could not, after negligently failing to inform himself as to how the business was being conducted, be heard to assert that his partner acted beyond the scope of his authority. In support of this position the case of Sparks v. Flannery, 104 Ga. 323, is cited and relied on. In that case one of the members of a partnership sought to escape liability on a contract made in' behalf of the firm by his copartner, after the partnership had received the fruits óf the contract, upon the technical ground that the con
Judgments affirmed, with directions.