6 Ala. 823 | Ala. | 1844
Lead Opinion
The only question submitted to the jury, was, whether the defendant below made the note declared on, either personally, or by one who was authorized to bind him to its payment. In order to fix a liability, the declarations of one who represented himself to be the defendant’s partner, is admitted to show that this relation existed between them. The fact that the party, of whose declarations the plaintiffs availed themselves, is not sued in this action, or is dead, can have no influence upon the admissibility of the evidence; for if the living partners are insolvent, it is allowable to sue the representatives of the deceased,
In Hutchins v. Childress & Baker, [4 Stew’t & P. Rep. 43,J the court said, “The admissions of one partner are not evidence to establish the existence of the partnership; but after its existence has been otherwise proved or admitted, the act or declaration of one relating to the subject matter of the partnership, will bind all.” [See, also, Story on Part. 159 — 160, 460, 2, & note 1.]
Whether the declarations of the deceased partner might have been so connected with other evidence as to make them admissible, we need not inquire. Prima facie they were admissible, either alone, or in connection with other proof; and if there existed a state of facts which rendered them competent, it should have been shown. It was not a sufficient reason for refusing to reject the declarations of McDaniel, that there was olher evidence of partnership; the other evidence may not have been credited by the jury, or may have been considered by them as insufficient So that, in this view, the verdict may have' been induced alone by evidence wholly incompetent.
The result of our opinion is, that the circuit court erred. Its judgment is consequently reversed, and the cause remanded.
Concurrence Opinion
I concur in the result of the opinion of my colleagues; but I do not assent to the proposition, that the admission of one that another is his partner, is incompetent evidence. In my opinion, it is admissible, but inconclusive. Every admission by one that he is the partner of another, includes