92 Ala. 522 | Ala. | 1890
B. S. Brown and A. J. Smith were partners, doing business in the town of Ozark, in this State, under the firm name of Brown & Smith. On the 27th day of September, 1889, said Brown, in the name of the firm, sold to» Rovelsky a house and lot in the town of Ozark at the price of' seven hundred dollars, received five hundred thereof in cash,, and signed the firm name to a bond for title purporting to-bind A. J. Smith and B. S. Brown under the firm name of “Brown & Smith.” Rovelsky -was put in possession of the property by Brown, and thereafter tendered the balance due on his purchase, and demanded of the partners a conveyance-of title to the property. Smith refused to join in the conveyance. Thereupon Rovelsky filed his bill for the specific enforcement of the contract evidenced by the bond for title. Brown interposed no defense. Smith defended on the ground that the property in question was owned by himself and Brown as joint tenants, or tenants in common,'and that the-sale by Brown was made without his knowledge or consent, and was repudiated by him, because, in respect to his right and title to his undivided half interest in said real estate, he was in no way bound by the acts of said Brown.
Smith, by the terms of his answer and by the statements in his deposition, assumed the position that the land in question •should not be treated as partnership property, but as any other land held by a tenancy in common. The bill avers that Brown and Smith were engaged in buying and selling real estate for speculation and profit, and that they engaged in that business as partners; that they bought and sold real, estate as partners under the firm name of Brown & Smith. These averments are sustained by the testimony of Brown, of' the complainant and of Barnes, all to the effect, that Brown and Smith were partners in the real estate business, and were-engaged in buying and selling lots in and around Ozark, that they treated and rented their property there as firm property., and, prior to the sale now sought to be enforced, each of the partners, in the name of the firm, was trying to make sale of the lot in question for the purpose of paying the debts of the firm. Brown stated, that prior to the purchase of the lots, he-.
The doctrine is familiar and is illustrated by many reported
The acts of the defendant Smith indicate that when he-learned of the sale made by Brown at first he treated it as binding on him; for it was stated by two witnesses, who are not contradicted, that his demand on Rovelsky was, not for a rescission or a non-assertion of the contract as against him, but for a transfer of the title bond to him or to his friend. Baldwin. Smith himself says he offered to repay the five hundred dollars to Rovelsky, thereby implying that such repayment was necessary to get rid of the effect of Brown’s act. This conduct might, without relying on the consideration stated above, be regarded as having the effect of making the contract of sale binding on -him; for if Smith, in his dealings with Rovelsky, treated the sale made in the firm name by Brown as having such effect that a transfer of the title bond to Baldwin would confer upon him a valid claim to the property, that, perhaps, amounted to such a subsequent parol rati
In copying the depositions of B. S. Brown, D. Bovelsky and Jesse W. Barnes into the transcript, the register has written out in the form of continuous paragraphs the interrogatories, or parts thereof, and the answers, or parts thereof, without numbering or otherwise separating or identifying the interrogatories or the answers. This mode of copying depositions is unnecessarily confusing. To comply with Buie 25 of the Buies of Practice in this court, Code of 1886, p. 803, the interrogatories and the answers thereto, which should immediately follow in the copy, ought to be plainly separated and identified. No costs will be taxed- to the register for copying into the transcript the depositions of the three witnesses above named.
The decree of the Chancery Court is reversed, and a decree will be here rendered for the specific enforcement of the contract of sale. Appellee Smith to pay the costs in this court, and in the chancery court.
Beversed and rendered.