49 Ala. 178 | Ala. | 1873
— The amendment of the complaint by the addition of other counts was within the discretion of the court, and was properly allowed. A count on a judgment may be joined with a count on a simple contract. Prater v. Miller, 25 Ala. 320; Boylston v. Sherron, 31 Ala. 538; 13 Johns. R. 462; 1 Chit. Pl. 200 ; Revised Code, § 2637. •
2. The clerical superscription of the word “ filed ” on the amendments to -the complaint would have been no more than the evidence of the clerk, given in .that way, of the filing. When they were allowed, and became incorporated into the complaint, they were as much filed as the original. So of their being signed by the plaintiff’s counsel.
3, 4. The important issue is, whether the plaintiffs had/ knowledge of the defendant’s withdrawal from the partnership of E. Leipzeiger & Co., when the debts sued for were contracted by that firm. The court charged the jury, at the instance of the defendant, that he was not liable if he had- done “ what was usual and proper ” to give notice to the plaintiffs. Afterwards, at the request of the plaintiffs, it was charged that the usual and proper inode of giving notice was by public advertisement, or by letters to the customers. The evidence showed that by neither of these inodes had communication been made to the plaintiffs. Whether from the facts proved they believed the plaintiffs were informed of the dissolution, was the province of the jury. What acts would constitute the usual and proper mode of giving notice, was a question of law. The error of the first charge was not cured by the subsequent explanation. The former was abstract, as well as a conclusion of law, inasmuch as the evidence disproved it. The latter is not correct in its application to this case. Prior customers must be informed, or the means of knowledge must have been such that they ought to have known. Parsons on Partnership, 412.
5. The court further charged that the plaintiffs could not recover, if they, or “ any one of their authorized agents,” had notice; or if “ any authorized agent of the plaintiffs in their mercantile business,” had notice. The strongest evidence of notice to an agent was, the defendant himself went into the storehouse of the plaintiffs, and told a person whose name was unknown to him, but whom he recognized as one of the salesmen belonging to the house, and who asked him if he could do anything for him, that his connection with Leipzeiger & Co. had been dissolved. The plaintiffs’ house employed a very large number of persons in various capacities. There can be no agency without authority. An agent is the representative
The judgment is reversed, and the cause'remanded.
