Sullivan v. Louisville & Nashville Railroad

128 Ala. 77 | Ala. | 1900

TYSON, J.

This suit was brought by Martin H. Sullivan in the relation of surviving partner of a partnership alleged to have existed between himself and D. F. Sullivan, deceased. From the complaint it appears that on the 27th of February, 1880, the Louisville & Nashville Railroad Co. entered into a contract in writing with D. F. Sullivan by which it agreed ito transport for him and liis “assigns” timber and lumber over the Pensacola road, the Selma & Gulf Bailroad and Mobile & Montgomery Railroad, from any point on any of them at the rate of one cent per ton per mile, etc. This contract undertakes to define the word “assigns” by stating “ithat the word ‘assigns’ above used in connection with the party of the first part (Sullivan) is hereby limited to his legal representatives, in case of his death; to hi-s successors in the timber and lumber business in ease of his retirement and to any mill that he may build or purchase in ease of his selling his interest therein.” It was further provided that the provisions of article four were ito be embraced in 'contracts to be severally and formally entered into by each of said corporations with said I). F. Sullivan and guaranteed by the Louisville & Nashville Railroad Company. Afterwards on the 13th day of November, 1880, the same parties entered into another contract in which it was recited that whereas by the fourth article of said first contract certain things were agreed (which, including the definition of the word “assigns” are again set out), and whereas the Pensacola Railroad Company had entered into a contract with said Sullivan in accordance with said fourth article and had since 'conveyed said railroad to the Louisville & Nashville Railroad Company subject to said contract; and, ’whereas the Pensacola & Selma Railroad Company as owners of the Selma Gulf Railroad, and the Mobile & Montgomery Railroad Company, had also contracted with iíaniel F. Sullivan, as required by said fourth article, it was thereupon agreed and guaranteed to and with said Daniel F. Sullivan and his “assigns” that said Louisville & Nashville Railroad 'Company and its “assigns” would transport, or cause to be transported, timber, logs and Limber for said Daniel F. Sullivan and his assigns (limiting the word “assigns” as defined by the fourth article of said contract of February 27th, 1880,) “at such time, and in such quantities * * as he or they may require over the Pensacola Railroad, Selma & Gulf Railroad and Mobile & Montgomery Railroad,” etc. It is further alleged that on May 24, 1881, said Daniel F. Sullivan and the defendant entered into still another contract, the substance of which is stated and which relates to rates of freight. It is 'also alleged that there was a partnership existing between the plaintiff 'and. Daniel F. Sullivan relative to tlie business in which they were engaged, of procuring lumber and timber and of shipping the same as agreed, and that it continued until the death of said Daniel F. ¡Sullivan on the 11th day of June, 1884, and that after his death, the plaintiff as a surviving partner continued to conduct the business; and that the defendant, prior to the death of said Daniel F., recognized the plaintiff as a member of the partnership and his right as such and has since his death, recognized him as surviving partner of the partnership “and had continued the execution of said contract with the plaintiff as such surviving partner." Many breaches of the contract are assigned, — 'some as having occurred in the life itime of said Daniel F. Sullivan and others since his death.

Amongst other defenses a sworn plea was interposed denying that the defendant had ever made or authorized any one to make the contract sued upon with the partnership doing business under the name D. F. Sullivan, butt that it made the contract sued on with D. F. Sullivan individually and personally and not otherwise, and the said 1). F. Sullivan was dead and that the plaintiff had no right to maintain the suit. There was a trial of the issue presented by this plea in connection with an agreement of counsel [that if there should be a verdict for plaintiff, an accounting should be had in respect to the damages, before referees. There was a verdict for the plaintiff upon the issue, followed by an accounting, upon which the court finally entered a judgment for the plaintiff. A motion for a new trial was made in which, on thirty-eight grounds, it was sought to set aside and vacate the judgment and verdict on the special plea, and in eight of which, alleged errors in respect ito the rulings of the court or the report of the referees, were insisted upon. It was insisted in the first aspect, that the jury disregarded numerous charges relating to the evidence introduced on the trial of the special plea, and thait the cour;t had erred in respect of a number of charges. The charges given and ■which it was insisted the jury had disregarded related to every phase of the evidence and among those refused by the court was the general charge in favor of the defendant.

The court vacated the judgment and granted ithe motion for a new trial, on the ground that the verdict was against the weight of the evidence. The plaintiff seeks to review this action, and insists that this'Court should confine itself to the ground on which the court below predicated its action. It is. insisted contra that- errors other than those relating ito the special plea, intervened, upon Avhich the court might Avell have rested its decision; and that this being true, the action of the court in granting a neAV trial ¡should be affirmed, regardless of the reason assigned for i|t; but in the vícav ive take of the case it is unnecessary to determine the question or to consider any ground other than those upon which the court 'below predicated its action.

Among hire guaranteed rights of property is the right to contract; and this includes the persons with AAdiom one may contract, as fully as the property which may he its subject-matter. The fact that one is associated Avith another as a partner does not, as respects third persons, restrict his right to contract individually, and so to contract as to exclude all others, even his co-partner, from participation. These are truisms, hut it may not be improper to refer to them. The leading case announcing this principle is Lucas et al. v. De la Cour, 1 Maule & Selwyn, 250, which was an action brought by the plaintiffs as partners, and the evidence shoAved that the contract was made with only one, of them in his individual capacity, who at the- time declared the subject-matter of the contract Avas his property. Lord Ellenborotjgii, C. J., said: “It struck me at the trial, that Avithout considering this as evidence that the property belonged ito Moravia alone, yet if one partner makes a contract in his individual capacity, and the other partners are willing to take the benefit of it, they must he content to do so according to the mode in Avliich the contract was made.”

In Humble v. Hunter, 12 A. & E. 310, which was an action of assumpsit on a charter-party executed, not by plaintiff, hut by a third person who, in the contract, described himself as Owner of the ship, held, that evidence was not admissible to show that such person contracted merely as the plaintiff’s agent. In the opinions which were delivered, there being four of them, Lord Denman, C. J., in part said: “We were rather inclined at first to think that this case came within the doctrine that a principal may come in and take the benefit of a contract made by his agent. But that doctrine cannot be applied where the agent contracts as principal ; and he has done so here by describing himself as ‘owner’ of the ship.” Patteson, J., said: “The question in this case turns upon the form of the contract. If the contract had been made in the son’s name merely, without more, it might have been shown that he was agent only, and that the plaintiff was the principal. But, as the document itself represents that the son contracted as ‘owner’ Lucas v. De la Cour applies. There the partner who made itlie contract represented that the property which was the subject of it belonged to him alone. The plaintiff here must be taken to have allowed her son to contract in this form, and must be hound by his act. In Robson v. Drummond, 2 B. & Ad. 303, where Sharpe, as coachmaker, with whom Hobson was a dormant partner, had agreed to furnish the defendant with a carriage for five years, at a certain yearly sum, and had retired from the business, and assigned all his interest in it to O. before the end of the first three years, it was held that an action could not be maintained by the two partners against the defendant, who returned the carriage, and refused to make the last, two yearly payments. In this case I was at first in the plaintiff’s, favour on account of the general principle referred to by my Lord, but the form of the contract takes the case out of that principle.” Wightman, J., said: “I thought at the trial that this case was governed by Skinner v. Slocks, 4 B. & Ald. 437. But neither in that nor in any case of the kind did the contracting party give himself any special description, or make any assertion of title to the subject-matter of the contract. Here the plaintiff describes himself expressly as ‘owner’ of the subject-matter. This brings the case within the principle of Lucas v. De La Cour, and the American authorities cited.” Lord Denman, C. J., again said: “Robson v. Drummond, 2 B. & Ad. 303, which my brother Patteson has cited, seems the same, in principle, with the present case. You have a right to the benefit you contemplate from the character, credit, and substance of the party with whom you contract.”

In Boston Ice Co. v. Potter, 123 Mass. 28, A. who bought ice of B. ceased to take it on account of dissatisfaction with B. and contracted for ice with C. Subsequently B. bought C.’s business and delivered ice to A. without notifying him of his purchase until after the delivery and consumption of the ice. Held, that B. could not maintain an action for the price of the ice against A. The court said: '“A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may he of importance to him who performs the con-. tract, as when he contracts with another to paint a picture, or white a hook, or furnish articles of a. particular kind, or when he relied upon the character or qualities of an individual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into.”

In the case of Graves and Barnewall v. Boston Marine Insurance Company, 2 Cranch, 419, a bill was filed the object of which was to have an alleged mistake, in a policy of insurance', corrected, and relief given thereon. The. material wox*ds ixx the policy are: “Do cause John Boonen Graves to be assured, lost or not lost, ten thousand dolbms, on property on hoax’d the ship Northern Libei-ties, as px-opertv may appear, at aixd from Teneriffe to Vera Cruz.” The loss was. proved. The bill alleged that the property belonged to the firm of Graves & Barnewall, of which the complainant, Graves, was a member; that Graves intended to effect insuriince oxx the joint interest, and that, this was known to the respondents. That previous to tire date of the policy it was usual to insert in marixxe policies a clause to the effect that the insurance was, for the benefit of all concerned, axxd that the respondents had made clraixge in this usage without making it known to the agents employed to effect the insurance, and they axxd the complainants did not know of this omission until after the loss. The answer denied all'mistake and all the facts relied on as evidence thereof, and especially the averments as to a change in the form of the policy. The district court, upon final hearing, dismissed the bill. The court, speaking through Marshall, O. J., held that the policy ivas a contract with Graves as an individual, and there was no.mistake. Says he: “If a suit at law had been brought on this policy, it would only have been brought in the name of Graves, and he must have averred property on board the vessel; * * * - and as the remedy of the plaintiff, Graves, on the policy, to the extent of his interest is complete at law, the decree of the circuit court dismissing his bill must be affirmed.”

The principles announced in these cases are supported in Schmaltz v. Avery, 16 A. & E. Q. B. 655; Darrow v. Produce Co., 57 Fed. Rep. 463; Burwitz v. Jeffers, 103 Mich. 512; Winchester v. Howard, 97 Mass. 303; Lucas v. Southern Railway Co., 122 Ala. 529; 25 So. Rep. 219; George on Partnership, 367, and authorities cited in note; 2 Bates on Partnership, § 1020.

The authorities relied upon by appellant and cited in brief, are not opposed to the principles announced in these cases. In the cases relied upon by him the contract contained no term descriptive of the capacity in which the plaintiff contracted or no statement as to whether he was being contracted with as a partner or as an individual. Indeed, this very right and the exercise of it may he of the very essence of the contract.

When contracts other than for personal services involving trust and confidence, or those which, from any other cause do not survive, are ended by the death of one of the parties, the1 law in the absence of special provisions to the contrary, regulates itlie right of succession. In case of contraéis to which a partnership is. a party, the legal right to execute or close it, vests in the surviving partner — the representative of the partners, for the purpose of winding up the partnersliip. But as we have said, there exists no inhibition upon the right of the contracting parties to provide the succession in case of death, and where -such provision i-s made, it becomes, itself, tbe law of tbe contract. It requires no stretch of the imagination to see, tli at it may be of the utmost importance in the making of contracts of the character of the ones under consideration, to provide for a limitation as to time, by way of regulating the 'succession of its ownership, in which it may be in force. It is not at all improbable that the defendant would have been unwilling to have undertaken the obligations imposed, incapable of being varied to meet the conditions that might aróse, except by mutual consent, to last for an unlimited period of time, by entering into a covenant, which not only bound it, but all persons who might become the owners of the railroad. Here it would seem such provision was made — not only once, but twice. First, we have every indication, by the use of the words “as owner” and of the personal and singular pronouns, “he” and “his” and “him” and “me” designating the party of the first part, I). F. Sullivan, that he was dealing for himself and not for a partnership. It maj1- be these words would lose their significance, if from other portions of the contract there were terms which might apply as well to a partnership, or if the contract appeared to have been drawn by an illiterate person. Buf the reading of these contracts dispels the latter idea; and as to the former subsequent provisions leaves but little room to doubt the words were used advisedly as designating and describing an individual-, as distinguished from a partnership. It discloses that provision for succession in the event of I). F. Sullivan’s death was considered and agreed upon; for the fourth article, as we have seen, contained the following term: “The word ‘assigns’ above used in connection with the party of the first part, is hereby limited to his legal representatives in case of his death,” etc. In the subsequtnt agreement between the1 same parties, already referred to, we find great 'caution exercised to have it appear that tbe ■word “assigns” was to be construed as had already been stated in said article four of the first contract. It will be noted that it is not only provided that the succession shall (mure to his “legal representatives,” but that it shall be “limited” to such representatives — a designation of the successor in interest and a negation of right in any other person. The term “legal representative” is one having a well defined legal meaning; its “primary meaning” being “executors or administrators.” Bouv. Law Dic. 170; 2 Woerner on Admin. 906, bottom page 990; Watson v. Colburn, 99 Mass. 342; Cox v. Curwen, 118 Mass. 108; Halsey v. Patterson, 37 N. J. Eq. 445; Tarrant v. Backus, 63 Conn. 277; Briggs v. Walker, 171 U. S. 471; Bynum v. Railroad Co., 100 Ala. 311. They must be presumed to have been so used and not to apply to a surviving partner. This primary meaning would of course yield to a context Which clearly showed a different meaning was intended; but here, the context supports the primary meaning. As the duty of construing written .contracts devolves upon the court, we feel no hesitancy in holdingj that this contract, on its face, is one solely with D. F. Sullivan as an individual and after his death, was limited to Ms executor or administrator; that no person could assert an interest under it as surviving partner.

But it is insisted by appellant, and seems ito be conceded by the other side, that the term- was one which the parties -could change -or alter by subsequent conduct, without express agreement. The theory upon which this insistence is predicated is upon the principal -of estoppel, and the remaining portion of this opinion will be devoted to a discussion of that question, without reference to its soundness. The -complaint, as -stated above, avers that in the lifetime of D. F. Sullivan, thi-s was done, in that, it was known to the defendant corporation that plaintiff, Martin II. Sullivan, was a partner, and that his rights under the contract as 'such were -recognized by the defendant before -the -death of D. F. Sullivan, and that it continued to recognize his interest and rights as such after his death. Having añade this allegation, the plaintiff must, on issue j-oined, have proved the facts as therein alleged. The burden was upon Mm to prove not only the existence :of the alleged partnership, and that the defendant knew the fact,, but that knowing it, the defendant in the lifetime of D. F. Sullivan, after the making of the contracts, recognized the rights of the plaintiff as a partner in the contract as also after his death. It would serve no useful imrpose ¡to discuss tlie evidence introduced upon tlie trial in detail. In respect of tlie alleged recognition of plaintiff as a partner, no evidence was 'competent except of occurrences subsequent to tlie making of tlie contract; since as we liave seen, the contract was not made with the partnership but with 1). E. Sullivan individually. The change or alteration of the term, must, of course, have resulted from subsequent action. The entire property claimed to be partnership property was in the name of I). F. 'Sullivan at his death, and he left a will in which he devised a large amout of it to the plaintiff who was named in and qualified as executor under this will, and executed it for more than six years. This, notwithstanding the will was after-wards set aside in a judicial proceeding upon a consent decree, was an admission by the platintiff that the property devised belonged to D. F. Sullivan individually. Moreover, the plaintiff revived a suit brought by I). F. Sullivan in his lifetime in the name of himself and the widow of I). F., as his executors and joint'd the children of I). F. as his heir® at law. This suit was an action of ejectment brought against the defendant corporation to recover one of the railroads now claimed to have been partnership property.

Some evidence was adduced of oral declarations of 1). F. Sullivan — 'some made long prior and others long subsequent to the date of the contract — to the effect that the» plaintiff was his partner. The proof is positive and undisputed, however, that no such declarations accompanied the execution of the contracts. On the contrary, I). F. Sullivan declared orally, as well as in tlie contracts themselves, that he was sole owner of the property. Nor was one of the declarations that the plaintiff was his partner traced directly to the knowledge of the defendant. For the purpose of fastening knowledge upon the defendant of the existence of the alleged partnership, there was evidence introduced by plaintiff tending to show that its existence was known in Pensacola and along ¡the lines of the. railroads referred to in the contracts. If it be conceded that the fact of its existence after the making of these contracts was sufficiently notorious as to carry a presumption that it was known to the agents or employes of the defendant in those localities, we may remark that the defendant is not shown to have had an agent there, ■whose kowledge would he the knowledge of the defendant company.

These contracts were corporate acts of large importance, and changes, or alterations were wholly without the scope of the duties of an agent or employe, made under -the corporate seal of the corporation by authority of its board of directors, and contained covenants running with the land as shown by the deed made in pursuance to their provisions. “It is not within the general scope of the authority of an agent of a corporation to alter, vary or enlarge contracts made by the corporation under its corporate seal.”’—Boynton v. Lynn Gas Light Co., 124 Mass. 197, 204; Cook on Stockholders, § 719.

In Lyndon Mill Co. v. The Lyndon Literary & Biblical Institution, 63 Vt. 581, it is held, in the absence of some delegation of authority express or implied the president of a corporation can no more bind iit than any other individual trustee, and that his authority to bind the corporation will not he presumed. This principle was recognized and enforced in Sampson v. Fox. 104 Ala. 62.

The change or alteration in these contracts sought to be enforced do not involve the waiver of a condition subsequent made for the benefit of the defendant, but involve, in a measure, an alteration of an express covenant contained not only in the contracts themselves but in the deed executed by D. F. Sullivan to defendant conveying the railroad. Manifestly by the very terms of the contracts these covenants can be assigned and enforced by the assignee and against a purchaser of the property of the defendant.—Gilmer v. M. & M. R. R. Co., 79 Ala. 569. This is not. true as to a condition subsequent—McMahon v. Williams, 79 Ala. 288. See also note to Cross v. Carson, 42 Am. Dec. 742.

The -evidence upon which the plantiff relies as tracing knowledge of the existence of a partnership and a recognition by iit of the partnership in the lifetime of 1). F. Sullivan, is a letter written by M. IT. Sullivan to one Saltmarsh, a division superintendent of one of the divisions belonging to the defendant. It is only necessary to say of the contents of this letter that it discloses. no claim by Martin H. as a partner; nor is there anything in it indicating an assertion by him of any imterest whatever in the contract. A letter signed by any other agent or employe of D. F. Sullivan could as well be made the predicate of a claim of interest. Furthermore, there 'was nothing to indicate any precise relation and it is evident that Saltmarsh did not construe it as coming from one acting in his own right, since the reply was addressed to Martin IT. Sullivan. Besides, this employe is shown affirmatively not to have had any knowledge of the claim of Martin I-I. that he was a partner, or any declaration of I). F. to the effect that Martin IT. was his partner. But independent of these* considerations, it appears from Saltmawdds testimony, and there is not an adverse inference to the contrary, that he was without authority to change the provisions of the contracts — that his authority extended only to the operation of the road of which he was superintendent. Stanley v. Sheffield Land Co., 83 Ala. 260. As we read the evidence, there is none whatever to show that the defendant, in the lifetime of D. F., recognized the rights of Martin H. as a partner. This the plaintiff must have shown, in order to sustain a necessary averment of his complaint — made necessai’y by the fact that the contracts, as we have shown, on their face, exclude the interest of a partner in the lifetime of D. F. and of a surviving partner after his death. There having been no recognition of the alleged partnership during the lifetime of D. F., it could avail the plaintiff nothing if he had proved such recognition after his death, since D. F.’s rights could not be legally affected by said .change, if it could have been made by subsequent conduct. Both are 'alleged, and both must be proved.

After I he death of D. F. the defendant transported lumber and logs, for account of plaintiff, rendering the bill to him individually. It is insisted by defendant that this ivas under a new written contract variant in its terms from that formerly in existence; and that it was under this latter contract that it transported the lumber and logs and not under the provisions of the contracts sued upon; while it is contended by the plaintiff that whatever differences existed, were by way of modification of the old and were made in the lifetime of T>. F. 'Sullivan. Assuming' that it was.the same contract, the plaintiff must prove his averments that his rights under it as surviving partner, ivere recognized by the defendant in manner and form as laid. It is insisted that this has been shown by the correspondence in which M. H. sometimes styling himself “surviving partner of D. H. Sullivan in liquidation,” at other times “surviving partner and successor to I). F. Sullivan.” In order to sustain t-lii-s insistence, the principle is. invoked that where one deals ufitli another without questioning the relation in winch he assumes to act, he cannot be heard afterwards to deny that relation. It is quite clear that the party alleged to be estopped must have conceded the relation to exist — had admitted and confessed the relation. Another element must also appear — that the admission induced the party invoking the estoppel to have changed or altered liis position to his detriment. That the admission wras so acted upon as that the party to whom it was made, wrould be injured by a denial of the status; in other w7ords, that he has acted on the assumption, superinduced by the conduct of the other party, to his prejudice. The plaintiff was one of the executors of the last wall and testament of I). F. and as such had the right as his “assigns” to have the contract carried out, and as such may be said to be his successor. ITe was claiming at the same itime to be a surviving partner. The contracts w7ere performed by the defendant in the same way as they had been carried out with I). F. Sullivan. It is not pretended tli'at the defendant by' any act or representation induced the plaintiff to assume the relation of surviving partner, if lie ever assumed any, or in any manner influenced him to assume the execution of the contract for the executors of H. F. as his surviving partner. Nor that it, in anywise, induced him to cause letters testamentary to be issued to himself as one of the executors under the will of his deceased brother. He was in possession of a knowledge of all the facts; more fully informed of his true relation to his deceased brother and the interest he owned in the property, which he claims belonged ito a partnership of which he was a member, than it was possible for the defendant to have ever 'been. Having a full knowledge of the true relationship which he bore to the property the legal title to which was in the name of D. F. at his death, it would seem that the duty rested upon him to unequivocally fix his own status. Certainly the defendant could not 'be compelled to fix it for him, and indeed could not have done so with any binding efficacy upon aim, and it would seem its agent’s declination to do so was put in the form of addressing him in no special re lation but as “Mr. M. Id. Sullivan.”

If it can be said that his assumption of the relation of surviving partner, if as a matter of fact he ever assumed to occupy such relation, as evinced by the words after his signature of “surviving partner of D. F. Sullivan in liquidation,” was such notice to the agent of defendant to whom they were addressed, as demanded action on the part of the agent, it may be a-s forcibly answered that the agent’s replies put him upon notice that ‘the relation was not conceded; that he was being dealt with as his interest might appear.' The fact that when the agent was addressed by the plaintiff claiming a special relation, he replied generally, cannot, certainly, be construed into an admission of the special relation. Especially is this true when it is made to appear that he wrote other letters covering the same period of time to the same agent signed by him “surviving partner-and successor to 1). F. Sullivan.” As executor .of of ¡the last will and testament, as we have said, he was the successor of D. F. under the very terms of the contract. The reply to these letters by the agent addressing him personally, in no special relation, cannot by any sort of construction be said, to have conceded his rights as surviving partner.

One of the essential elements of an estoppel is certainty; and it cannot be said that it clearly appears-that the plaintiff had the right and acted upon it to construe the replies to his letters into an admission of 'liis claim as survmng partner. He had not unequivocally fixed his status by his own letters. The matter -of liis relation to the estate of I). F. 'Sullivan seems to have been a doubtful question with him as shown by them. 1-Ie seems to have avoided, as shown by the correspondence, and his conduct, 'committing himself to an unqualified admission in what capacity he desired the contract to be performed by the defendant’s agents. If the answers to his lettrs did not convey a suggestion of a repudiation of his alleged claim as surviving partner, [they certainly were sufficient to disclose a refusal on the part of the agent who wrote them to commit himself to an assumption of the responsibility of determining whether, in the first instance, plaintiff had the right to proceed under the contract as executor or as surviving partner.—Miller v. Hampton, 37 Ala. 347; 11 Am. & Eng. Ency. Law (2d ed.), 424 and note 2.

Another essential of an estoppel is mutuality. Until the plaintiff unequivocally fixed his own status with reference to the contract, that is, until he had by his conduct, declarations or admissions so placed himself in the position of asserting his rights as surviving partnei*, and not otherwise, as that he was bound in that relation and in no other, there can be no estoppel as against the agents with whom he was dealing, much less against the defendant, to dispute his right as such. This he did not do. On the contrary, he left the question of his status, as successor, open and undetermined. In one batch of letters written, he claimed to be asserting his rights as surviving partner. In the next, he asserted his rights as “surviving partner and successor to 1). F. Sullivan.” Whether the succession was claimed in the latter as surviving partner or as executor or as successor of I). F. Sullivan-in the timber and lumber business after his (I). F.’s) retirement was certainly not definitely and conclusively disclosed by this language. The agent whose duty it was to perform for the defendant the obligations of the contract -would certainly not have been authorized to have refused to do so, upon the ground of an asserted claim by the. plaintiff to have it performed as surviving partner. As executor he was entitled to have these contracts performed according to their terms. The agent, knowing this, could well have recognized his rights in that capacity and complied with his demands, without committing him [to a recognition of his alleged claim.

There was an absolute failure on the part of the plaintiff to bring his case, for the several reasons pointed out, within the application of the principle of estoppel invoked by him.—1 Brick. Dig. 796, §§ 2, 5; Hunley v. Hunley, 15 Ala. 91, 105; Pounds v. Richards, 21 Ala. 424; 2 Pom. Eq. Jur., § 805.

However, if it be conceded that the evidence establishes the existence of a partnership and a recognition of the plaintiff’s rights, by the agents of the defendant after the execution of the contracts, in the absence of evidence of the agent’s 'authority to bind the, defendant, here is a failure of proof of the recognition as alleged in the complaint.—Cook on Stockholders, §§ 716-720 and notes. It cannot be held that there has been a ratification by defendant of the unauthorized acts of its agents, conceding, for the sake of argument, they are shown, upon any phase of the case as. made by the evidence.—Dabney v. Stevens, 40 Howard’s Pr. 341; Tracy v. The Guthrie Co. Ag. So., 47 Ia. 27; Wheeler v. McGuire, 86 Ala. 398. In the opinion in the case of Dabney v. Stevens, there i's an elaborate discussion of many of the principles invoked in the queston under consideration. Upon what theory the plaintiff could' contend for a ratification and in the same breath insist upon breaches, of the contracts, as changed or altered by the conduct of the agents, we are quite unable to see. From his standpoint, the acts of the agents consisted in its breach as well as a recognition of his rights as surviving partner to demand performance. If there was a ratification of the one, there Avas. of necessity a ratification of the other. If the contract was changed, as changed it is an entirety. There cannot well be a repudiation of it and ■nt the same time a recognition of it. Or to state ¡the proposition in another form, there cannot be a ratifioation of an act done with reference to it, involving and constituting a part of the same transaction in which the contract is repudiated. The acts of recognition and breaches by the agents spring out of one transaction — the furnishing of cars at the request of the plaintiff for the transportation of logs and lumber and the collection of the charges for the service.

Affirmed.