Kenan v. Starke , 6 Ala. 773 ( 1844 )

GOLDTHWAITE, J.

1. Thedefendant in error, asserts that no examination can be had of the questions attempted to be raised; because the bill of exceptions has no seal affixed. We shall not now consider whether such an omission would cause exceptions, otherwise sufficiently certified to be rejected, because, in our opinion, the transcript does not sustain the objection. On reference to it, we find the presiding judge has added, after his name, the word seal, and there is a scroll around it. Applied to a bill of exceptions, this must be considered as what it purports to be.

2.The offer of the defendant below to. prove that the plaintiffs wére not partners when the supposed indebtedness accrued, and that the debt, if due at all, was due to one of them individually, is not a matter controlled by the statute referred to. That provides, that when plaintiffs shall bring suit as a firm or partnership, it shall not be necessary for proof to be made, that the individuals named as plaintiffs, constitute the members of the firm, unless the defendant puts the same in issue, by plea in abatement. [Clay’s Digest, 324, § 68.] The attempt here was not to show that the firm suing, was composed of other persons than those alleged, but was to prove that the indebtedness was to a single individual. The statute was intended to prevent the necessity of proof of the individuals composing a partnership whenever the contract was made with a partnership by name; but when the contract is made 'with an individual, and the attempt is to recover it in the name of a partnership, the statute has no operation whatever. There was error, therefore, in refusing to allow this evidence.

3. The charge asked with respect to the necessity for proof of a delivery of the goods sold, is not presented in such a manner as to show error, because we cannot infer what the proof was. A delivery is not essential to be proved, to give a right of action in all cases, as the seller is not bound to deliver his. wares without payment made, and he may maintain an action for the- price, upon the contract of sale.

4. The other charge with respect to the effect of the admission by Blount, the previous representative of the estate, that the account was presented to him within eighteen months alter grant of administration is concluded by the decision upon that point, made when the case was here at a former term. [Starke & Moore v. Kenan, 5 Ala. Rep. 690.]

Por the error we first noticed, the judgment must be reversed, and the cause remanded.