44 So. 601 | Ala. | 1907
The complaint is in common form, and "the only count in it to which the evidence can be referred is upon a quantum meruit demand for work and labor done. The case was tried on the general issue and the plea of payment. There was no evidence of payment; but the real contest seems to have been whether there was any employment of either of the firms of which plaintiffs are survivors by defendant’s estate. The cause was tried by the court without the intervention of a jury, and from a judgment rendered by the court in favor of the plaintiffs for $300 defendant has appealed.
We do not find anything in the evidence which warrants a reasonable inference that Haden, in making the contract with Tompkins and with Watts, was acting as the agent of Tisdale. On the contrary, aside from the fact that Tisdale had no personal interest in the suit, and in addition to Haden’s evidence in respect to making the contract, Haden testified ’that he paid Mr. Watts’ expenses to New Orleans when he attended the Circuit Court of Appeals, and paid for printing briefs. No evidence is offered by the record that Tisdale ever conferred with any one in connection with the suit, or that he took any part in the trial. The fact that the suit was brought in his game cannot overcome the evidence of Haden in respect to the contract of employ' ment. The suit could not have been properly brought, in the name of the deputies; and it is entirely consistent with Haden’s evidence, and in proper connection therewith, to say that Tisdale merely consented to the use of his name as plaintiff, and that, while Haden and the deputies were not parties to the suit, yet they were the
While we prefer to rest our findings on the foregoing considerations, there is another potent suggestion which arises from the record in this cause, the basis of which might justify a finding in favor of the defendant. The defendant is summoned to answer the complaint of “Alexander Troy and Francis Gl. Caffey, surviving part-uers of the late firms of Tompkins & Troy and Watts, Troy & Caffey.” The complaint follows the summons, and the count in the complaint to which the evidence must be referred is in this language: “And plaintiffs further claim of the defendant the like sum,, due on, to' wit, the 7th day of August, 1904, for work and labor done by plaintiffs for defendant’s intestate during the years Í899, 1900, 1901, 1902, 1903, 1904, and 1905 at his request.” Are not the words, “surviving partners of the late firms of Tompkins & Troy and Watts, Troy
The judgment of the city court is reversed and judgment will be here rendered for the defendant.
Eeversed and rendered.