Thornton v. Kerr , 6 Ala. 823 ( 1844 )

COLLIER, C. J.

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, even at law, and recover a judgment for the firm debt. The act of 1839 is explicit upon this point. [Bartlett & Waring v. Lang’s Adm’rx, 2 Ala. Rep. 401.] This being the case, it cannot be said that McDaniel, when living, was not interested in establishing a partnership between himself and the defendant, of that the bur-thens of his estate would not be lessened by showing such a connection. True, the representatives of the deceased would be liable to contribute the intestate’s share of such judgment as might be recovered against the defendant, but if the plaintiffs are unsuccessful, the estate will be liable to the payment of the note in solido. The difference in the extent to which the estate will be chargeable according to the judgment in the case, shows that there was not an equillibrium of interest on thé part of the deceased, and that his declarations were not evidence per se. [2 Phil. Ev. C. & H.’s notes, 112, 266.]

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.