3 So. 311 | Ala. | 1887
2. Same; partnership in farming or planting. — A partnership to carry on the business of farming or planting, is not a trading (or commercial) partnership; and one of the partners has not, as matter of law, authority to bind the other, or the partnership, by a contract for medicine and medical services furnished and rendered to the laborers employed by them.
3. Statute of frauds; promise to pay debt of third person. — A promise to pay the debt of another, out of moneys belonging or coming to him in the hands of the promisor, is not within the statute of frauds (Code, § 2121, subd. 3), but is a promise to pay his own debt in a particular way. The second instruction of the court asserts the proposition, that, where a partnership is formed between two persons to carry on the business of farming, or planting, each partner has the implied authority, as matter of law, to bind the firm for medicine and medical supplies furnished by a practicing physician to the laborers employed on the farm, or plantation, cultivated by the partners.
The partnership in this case is not a trading or commercial one, which is generally governed, as to its scope of authority, by the rules of the law-merchant, of which the courts take judicial cognizance. The principle governing a nontrading partnership is well settled. There are three classes of cases where each partner connected with such associations may lawfully bind the firm; the burden, in each case, being on the plaintiff to prove the facts by which such authority is established, or from which it may be implied: (1) where he has express authority to do so; (2) where the contract made, or thing done, is necessary in order to carry on the business of the partnership; (3) and where it is usually or customarily incident to other partnerships of like nature. McCrary v. Slaughter,
In the present case, no express authority was shown for Howard to make the contract in question, by which he was alleged to have employed the service of the plaintiff as a physician to attend upon the farm laborers, or to furnish them medicines. It does not appear, as matter of law, nor was it shown as matter of fact, that this was necessary to carry on the farming business, and the court therefore erred in so declaring. Nor was any attempt made to prove that such contracts were customary or usual in carrying on farming operations in this State, or even in the particular locality. Under this view of the law, the court erred in giving the second instruction to the jury.
2. If the promise made by Howard was to pay the plaintiff for his services out of any fund due by the firm to the farm laborers for wages, it would not be an agreement obnoxious *155
to the statute of frauds, as the promise to pay the debt of another, although the partnership of Woodruff Howard be not regarded as the original debtors. Such promise to pay a certain sum, due by another, out of a trust fund in the hands of the promisor, is, in substance, a promise to pay his own debt in a particular way, the debt of another coming in, as has been said, only "incidentally as a measure of damages." — Wolff v. Koppell, 3 Hill, N. Y. 458; Westmoreland v.Porter,
The rulings of the Circuit Court conflicted with these principles, and its judgment must be reversed and the cause remanded.
*1
