Opinion
5 Div. 918.
November 27, 1925. Rehearing Denied January 21, 1926.
Appeal from Circuit Court, Coosa County; E. S. Lyman, Judge.
H. A. Teel, of Rockford, W. W. Sanders, of Elba, and W. O. Mulkey, of Geneva, for appellant.
A person becomes liable as a partner to third persons when he is a partner in fact, or permits himself to be held out or holds himself out as such; but there is no liability to third persons who have notice of the real facts and have not been misled to their prejudice. Ala. F. Co. v. Reynolds, 85 Ala. 19, 4 So. 639; Humes v. O'Bryan, 74 Ala. 64; Fletcher v. Pullen, 70 Md. 205, 16 A. 887, 14 Am. St. Rep. 355; Marble v. Lypes,
82 Ala. 322, 2 So. 701; McCrary v. Slaughter, 58 Ala. 230; Bates on Partnership, 108, 109, 115. An estoppel, to be available, must be specially pleaded. Baker v. Amer. Agri. Co., 201 Ala. 328, 77 So. 866; Wells v. Parker, 200 Ala. 166, 75 So. 914; Clark v. Johnson, 155 Ala. 648, 47 So. 82; Jones v. Peebles, 130 Ala. 269, 30 So. 564; Roland v. Logan, 18 Ala. 307; Eggleston v. Wilson, 211 Ala. 140, 100 So. 89. The partnership for the operation of a turpentine plant is not a trading or commercial partnership. Woodruff v. Scaife, 83 Ala. 152, 3 So. 311; Lichenstein v. Murphree, 9 Ala. App. 108, 62 So. 444; 30 Cyc. 479; Lee v. Bank, 45 Kan. 8, 25 P. 196, 11 L.R.A. 238. The declarations of one partner, not made in the presence of his copartner, are not competent to prove the existence of a partnership. Owensboro v. Bliss, 132 Ala. 253, 31 So. 81, 90 Am. St. Rep. 907; Humes v. O'Bryan, 74 Ala. 64; Central R. v. Smith, 76 Ala. 579, 52 Am. Rep. 353; McNeill v. Reynolds, 9 Ala. 313; Thornton v. Kerr, 6 Ala. 823. Record of the unsigned partnership agreement in the probate office was not admissible in evidence. Marks v. William, 117 Ky. 663, 78 S.W. 864, 1105, 4 Ann. Cas. 814; Cook v. Slate, 36 Ohio St. 135, 38 Am. Rep. 568; Potter v. Green, 9 Gray (Mass.) 309, 69 Am. Dec. 290. It is improper for a witness to state his conclusion regarding the issue which is being tried by the jury. Brandon v. Progress Dist. Co., 167 Ala. 365, 52 So. 640; Alexander v. Handley, 96 Ala. 220, 11 So. 390. The complaint alleged a partnership composed of Mizell and Carter; the proof showed a partnership composed of these two and another. There was, hence, a variance, entitling defendant to the affirmative charge. Warner v. Cooper, 131 Ala. 297, 31 So. 28. The dissolution of a partnership terminates all liability of the partners as such, in absence of express agreement by the partner sought to be charged. Cunningham v. Bragg, 37 Ala. 436; Myatt Moore v. Bell, 41 Ala. 222; 20 R. C. L. 969.
Felix L. Smith, of Rockford, and Holley Milner, of Wetumpka, for appellee.
In actions against partners, less proof is required than to establish the relationship as between themselves. Cain Lbr. Co. v. Standard Kiln Co., 108 Ala. 349, 18 So. 882; 4 Mayfield's Dig. 387; Frankel v. Hillier, 16 N.D. 387, 113 N.W. 1067, 15 Ann. Cas. 265. When the fact of a partnership has been otherwise proven, the declaration of one partner, though not made in the presence of the other, is admissible, in corroboration and to show credit given on the faith of the existence of the partnership. Clark v. Taylor, 68 Ala. 453; Humes v. O'Bryan, 74 Ala. 81; Hohnadel v. Ellsworth, 154 Ill. App. 484; Oil Well Supp. Co. v. Metcalf, 174 Mo. App. 555, 160 S.W. 897. An engagement of an individual member, if coming within the knowledge of his copartners and assented to by them, is obligatory on the concern; and one partner is bound by the act of another, if the thing done is necessary to carry on the business of the partnership. McNeill v. Reynolds, 9 Ala. 313; Woodruff v. Scaife, 83 Ala. 154, 3 So. 311; Dowling v. Bank, 145 U.S. 512, 12 S.Ct. 928, 36 L.Ed. 795. Proof of a partnership and of those who control it is made by conduct, control, conversation, or that a person has permitted himself to be held out as a partner, and that third persons have dealt with the firm on the faith that the relation exists. Eggleston v. Wilson, 211 Ala. 140, 100 So. 89; Id., 208 Ala. 167, 94 So. 108; Cain Lbr. Co. v. Standard Kiln Co., 108 Ala. 349, 18 So. 882; Dicks v. McAllister, 211 Ala. 422, 100 So. 632; 4 Mayfield's Dig. 387. In suing a partnership, any or all members may be sued. Rabitte v. Orr, 83 Ala. 185, 3 So. 420; Austin v. Beall, 167 Ala. 426, 52 So. 657, Ann. Cas. 1912A, 510.
The suit is on common counts against defendants as parties doing business under a firm name and style. Defendants pleaded the general issue and that denying the partnership existence.
The liability of partners for the contracts of the partnership and that imposed on one held out as a partner was the subject of extended discussion in Eggleston v. Wilson, 211 Ala. 140, 100 So. 89. These recognized rules need not now be repeated. It is declared that in actions by strangers against partners or for the liability imposed on a partner, that same strictness of proof is not required to establish the relationship or liability as is required in suits between partners inter se, where the fact of the relationship must be proved. Cain Lumber Co. v. Standard Dry Kiln Co., 108 Ala. 349, 18 So. 882; Paterson v. Mobile S. Co., 202 Ala. 471, 80 So. 855. When the fact of the existence of the partnership has been otherwise established, the declarations of the partners, within the scope of the business, though not made in the presence of the other, are competent evidence. Eggleston v. Wilson, 211 Ala. 140, 100 So. 89; Conner v. Ray, 195 Ala. 170, 70 So. 130; Clark v. Taylor, 68 Ala. 453; Alabama Fertilizer Co. v. Reynolds Lee, 85 Ala. 22, 4 So. 639; Id., 79 Ala. 501; Humes v. O'Bryan, 74 Ala. 64; Dicks v. McAllister, 20 Ala. App. 5, 100 So. 631.
There was no error in permitting Carter's statements to plaintiff's witness, Golson, as to who composed the partnership — that Mizell was interested and a partner. The excerpt of the partnership agreement of the company recorded in the county of Coosa was furnished Carter by Mizell, and was recorded at his request or with his permission; the same was known to Golson at the time of and prior to the extending of the credit for which suit is brought. There are further tendencies of evidence to the effect that Carter stated to Golson that appellant was a partner; that appellant, having been sued as partner in another case, settled the same before trial was concluded by verdict; the failure of appellant to deny that he gave permission to Carter to have the excerpt of the contract showing the partnership relations recorded in the county and community where the credit was extended; and that appellant told Golson that said Turpentine Company had to have credit for merchandise, and he thought same would be paid. The foregoing made a jury question as to imposed liability as a partner and indicates there was no error in admitting the evidence in question. Contradictory tendencies of evidence are for the jury. Affirmative charges requested were properly refused under the special plea denying liability for the debts and obligations of that company. Jones v. Bell, 201 Ala. 336, 77 So. 998; McMillan v. Aiken, 205 Ala. 35, 88 So. 135.
The case was given to the jury on the question of fact whether or not Mizell was liable because he knowingly permitted himself to be held out as a partner. And the ruling on evidence will be considered in that light. There was no error in ruling as to evidence of the suit of Coosa County Turpentine Company against defendant under the general grounds of objection assigned, as the court is not required to seek proper objection as to the admissibility of evidence. Lester v. Jacobs, 212 Ala. 614 (10), 103 So. 682. However, according to the evidence, there was basis for the inference that the settlement of that suit was at appellant's instance, and that he was materially interested therein, or that he furnished the moneys for the effectuation of the same. The evidence was competent as tending to establish the existence of the partnership. Eggleston v. Wilson, supra. The other phase of the evidence, or inference therefrom, that defendant was the victim of circumstances in that suit, presented a jury question under all the evidence.
The appellant had offered, through the witness, Carter, a letter by Coosa County Turpentine Company to the Ark-Ala Lumber Company. He cannot therefore complain that Carter was permitted to explain that that company was threatening suit against the Turpentine Company for damages to the timber under the contract provision. The question now challenged was within the res gestæ of the writing of the letter. L. N. R. R. Co. v. Quinn, 146 Ala. 330, 39 So. 756; Gibson v. Gaines, 198 Ala. 583, 73 So. 929; Bank of Phœnix City v. Taylor, 196 Ala. 665, 72 So. 264.
There was no variance in allegata and probata. The complaint described as the partners Carter and Mizell. The fact that the evidence showed another partner is immaterial. Any or all of them may be sued. Rabitte v. Orr Bros., 83 Ala. 185, 3 So. 420.
Given charges Nos. 4 and 5, for plaintiff, under the evidence, were in accord with the decisions adverted to in Eggleston v. Wilson, 211 Ala. 140, 100 So. 89. Charges 6 and 9, requested by defendant, were properly refused, in that they ignore tendencies of evidence showing that Mizell knew that Carter was or had been holding him out as a partner in the county or community in question (and where the credit was extended), and that persons, including the plaintiff, might be misled in extending credit to the company on the assumption that defendant was a partner. Moreover, charge 6 fails to hypothesize "if the jury believe the evidence," and charge 9 improperly restricts the holding out as a partner to the plaintiff alone. This is not the rule of Eggleston v. Wilson, supra. The last named charge was covered, in the principles sought to be stated, in the court's oral charge.
The evidence showed that the Turpentine Company was such a commercial enterprise as, in the conduct of its business or operations, must have groceries, etc., for which the credit was extended. Charges 13 and 14 pretermitted the question of fact as to whether the Turpentine Company was or was not a "commercial concern." Charge 14 was incorrect in its implication to the jury that, in order for plaintiff to recover, the articles purchased must be such as customarily used in the operation of a turpentine business, when liability of parties may be predicated on knowledge, or holding out, that goods were being generally purchased and charged to the partnership. Lewis v. Isbell Nat. Bank, 198 Ala. 484, 73 So. 655; McNeill v. Reynolds, 9 Ala. 313.
Charge 2 was refused properly as unduly singling out a part of the evidence. Alabama Power Co. v. Goodwin (Ala. Sup.) 106 So. 239; Miller v. Whittington, 202 Ala. 406, 80 So. 499; Councill v. Mayhew, 172 Ala. 313, 55 So. 314. Moreover, it ignores the tendency of evidence that agreement was recorded with Mizell's knowledge and consent.
Ante, p. 15.
Charge 11 unduly restricts the operation of the effect of the recorded agreement. It is sufficient that plaintiff know its contents or legal effect, though not directed thereto by Mizell or by Carter — it was evidence tending to show a holding out generally as a partner with the knowledge and consent of Mizell.
We have examined the evidence in the record, and find no reversible error.
The judgment is affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.
On Rehearing.
If the special plea denying partnership existence had restricted its allegations to that denial, it perhaps would have been necessary for plaintiff to have replied specially setting up the estoppel. However, the plea goes further and denies any liability "for the debts and obligations of the Coosa County Turpentine Company." Application overruled.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.