Tanner & DeLaney Engine Co. v. Hall, 5 So. 584

5 So. 584 | Ala. | 1889

Action on Promissory Notes signed in name of Partnership.

1. Proof of partnership. — The existence of a partnership can not be proved by general reputation, or common rumor; nor is it competent to prove that "it was understood and matter of common knowledge," in the town in which the business was carried on, "that the defendant was a partner of the firm," for the purpose of showing notice to the defendant that the business was so carried on, when it is not proved that plaintiff's debt was contracted on the faith of such partnership.

2. Proof of agency. — The declaration of a person who assumes to act as agent for another, accompanying the act done, is not admissible as evidence against the person for whom he assumed or professed to act, without independent evidence of the agency.

3. Proof of foreign judicial proceedings. — The fact that an engine sold by plaintiffs to a partnership, of which they claim that defendant was a member, was sold under attachment proceedings in Florida before they again took possession of it, must be proved by a transcript properly certified, and can not be proved by oral testimony. 1. It was not competent to prove the existence of a partnership between the defendant Hall and Mobley, by general reputation, or common rumor. Hogan v. Douglass, 2 Ala. 499; Humes v. O'Bryan, 74 Ala. 64. The court, under this principle, properly excluded the testimony of the witness Butler, to which exception was taken by the defendant. If the fact had been proved that the saw-mill business was openly carried on in Chipley, Florida, in the name of Hall Mobley as partners, perhaps the common notoriety of this fact might also be proved to charge the defendant with probable knowledge of it, in order to show that, by culpable silence or express agreement, the defendant had permitted himself to be held out to the public as a partner; provided it were further proved that the debt sued for was contracted on the faith of this fact, and related to the alleged partnership business. But that is not this case. Humes v. O'Bryan, 74 Ala. 64, supra; Woods v. MontevalloC. T. Co., 84 Ala. 560; Ala. Fertilizer Co. v. Reynolds Lee,85 Ala. 19.

2. The record contains no evidence tending to prove that Butler was the agent of the plaintiff, having authority to take possession of the engine. His declaration, therefore, representing himself to be such agent, when he took possession of the engine, was not admissible against the plaintiff, without independent evidence of such alleged agency. — Martin v. Brown, 75 Ala. 442; 3 Brick. Dig. p. 21, § 40. The court erred in not excluding the testimony of the defendant, as to Butler's representation that he was acting as an agent for the plaintiff, in assuming authority to take possession of the engine.

3. There was no error in excluding the proposed oral evidence of the attachment proceedings in Florida, under which it was claimed that the engine had been sold, and purchased by the plaintiff. Those proceedings were matters of record,

and constituted material evidence affecting the validity of the seizure of the property, and the amount of the plaintiff's recovery in the action. This record should have been proved by certified transcript, and not orally by secondary evidence.

Reversed and remanded.