Park v. Wooten's Executors
35 Ala. 242
Ala.
1859
Check Treatment
STONE, J.

It may, for the purposes of this case, be conceded that the defendants’ testator, Dr. Wooten, was a dormant partner in the firm of W. B. Wright k Co. Coll, on Part. § 4.

If a dormant partner be hioxon as a member of the firm, to one with whom the firm has dealings, actual notice of dissolution must be carried home to the person who has thus dealt with the firm, in order to exonerate outgoing partners from liabilities afterwards incurred. This actual notice may be shown by positive evidence, or by pertinent circumstances, if sufficient to convince the jury. — Mauldin v. Br. Bank of Mobile, 2 Ala. 502, 510-11 ; Coll. on Part. § § 536, 537, and notes.

[2.] It results from the principles stated above, that notice to, or knowledge in the plaintiff, that Dr. Wooten was a member of the firm of W. B. Wright k Co. when he, the plaintiff first opened an account with them, was pertinent and material, and the plaintiff’should have been allowed to prove it. The circuit court erred in excluding that part of the answer of the witness Bolles to the first cross-interrogatory, which is expressed in the words, “ who represented the firm as good, — Dr. Wooten being the moneyed man of the firm.” The whole sentence, from which that was stricken, states that one Hansford had ordered the first bill of goods which the firm bought *246from the plaintiff; and the rejected clause, if believed, shows that Mr. Park, while he was dealing with the firm, had notice that Dr. Wooten was a member.

[3-4.] It is urged, that the answer to the first cross-interrogatory was not responsive to any direct question ; and that, of the clause'rejected, there was a portion which was illegal. The rule which relieves the primary court from the duty of separating legal from illegal evidence, is invoked. The objection, that the answer was not responsive, is answered by the fact, that the motion to exclude seems not to have been made until the trial had been entered upon. — McCreary v. Turk, 29 Ala. 244. The clause excluded on defendant’s objection, purports to be a representation, made to the plaintiff by Mr. Hansford, the agent of the plaintiff’ for some purposes. The fact to be proved was notice; and the testimony offered was in the nature of a verbal fact, tending to prove notice. It was a representation from which notice would probably be inferred, if believed by the jury. Strike out from the representation the words here objected to as illegal, and both the sentence and the sense will remain incomplete. Notice was not the sole, nor, perhaps, the primary object of the representation; although, if the witness be believed, notice that Dr. Wooten was a partner is implied in the communication. This is a case of evidence, competent for the establishment of one of the facts involved in the issue. We will not presume the court would necessarily have permitted the evidence to have too large an operation. The proper course for defendant was, to let the evidence in, and, if he deemed it necessary, he should have asked a charge, limiting its operation to the question of notice, the only subject on which it appears to have been competent.

Another rejected clause, commencing with the words, “I derived my information,” &c., seems to be equally unexceptionable with the clause above copied. Each tended to prove the fact of notice. That Dr. Wooten was a member of the firm, had been proved by other witnesses, who testified as to facts.

If it be objected that the notice, of which the witness *247Bolles testifies, was in writing; and that the writing should have been produced, or its absence accounted for, — a sufficient answer is furnished in this, that we do not think the record shows the notice or information was in writing.

The rules above declared will govern the charge on another trial.

Reversed and remanded.