McGehee v. Powell , 8 Ala. 827 ( 1846 )

GOLDTHWAITE, J.

1. Before entering upon the consideration of the questions we intend to decide in this case, we think proper to remark, that no serious objection is stated to the counts of the declaration upon which the cause went to the jury ; nor has any particular stress been laid on the exclusion from the jury of the notes of the Trading Company offered in evidence. The only plea on which, if at all, these were admissible, had previously been stricken out, and the indebtedness and insolvency of the company were entirely immaterial facts, in the manner in which the suit was defended.

2. Nor is it materia] to notice the decision upon the demurrer to the second plea, as the same defence was proper, if available at all, under the general issue, and the proof is more explicit of the facts upon which the defence is supposed to arise. The argument assumed by the defendant is, that at the time of this contract, one of the contracting parties was a limited partnership, and as .such, was inhibited from emitting notes for circulation as money. The act of 1837, first authorized the formation of limited ■partnerships, but at the same time declaimed that nothing in it should be so construed as to authorize any such partnership for the purpose of banking or making insurance. [Dig. 389, § 1.] When this statute was passed, there was no restrictive act in force to prevent individuals, or associations of individuals, from transacting banking business ; and there is nothing in our State constitution which takes away their common law right. [Nance v. Hemphill, 1 Ala. Rep. N. S. 551.] Certainly there is nothing-in the terms of the enactment to warrant the inference that the intention of the legislature was to restrict such partnerships only. On the contrary, it seems to have been intended, that as to insurance and banking, no limited partnership should be allowed ; but that, in this description of business, all the partners should be responsible, as in cases of other partnerships. We dismiss then, all consideration of the supposed defects in complying with the requisitions of the statute regulating limited partnerships, as our opinion is, that if all had been complied with, no other than a general partnership could exist as to this kind of business. It then comes to no more than this — the association, though formed as a limited partnership, has, by the articles bringing them together, contracted to carry on a business which could then be done by general partners only, and the consequence is, all are liable as such. Beyond this, the decision cited shows, that at the time of the contract, bills might be lawfully issued for circulation as money, by a genera] partnership.

This conclusion necessarily sustains the refusal by the Court, of the charges growing out of the supposed construction of the act regulating limited partnerships.

3. It is urged however, that the jury might properly have inferred, the contract was with relation to bills of three dollars; the circulation of which was restrained at the time of the contract. We are not prepared to say that the proof before the jury was such as to warrant this conclusion; certainly, however, it was not one which they were constrained to infer, and in the absence of any specific request for a charge upon this point of the case, there was no error in refusing to instruct the jury, that their verdict ought to be for the defendant. In the case of the Bank at Montgomery v. Crocheron, [5 Ala. Rep. 256,] a similar question was presented, and wc then held, that the receipt of bills of this denomination, or less, under a general contract to receive and circulate as money the bills of a corporation, did not render the contract void per se, and that the question of intention was proper to be left to the jury. Our final conclusion is in entire accordance with that decision.

4. It remains only to consider whether the last charge should have been given. We do not understand the counsel for the plaintiff as denying the correctness of this proposition, as a matter of law, but as insisting, that applied to the facts of this case, it was merely abstract, as there was no evidence that the defendant entered into the conspiracy of the general partners, if indeed there was any such, to defraud the public. Undoubtedly the proposition is correct, and well sustained by adjudged eases in our Courts, and elsewhere. [Bank v. Crocheron, 5 Ala. Rep. 256; Boyd v. Barclay, 1 Id. 34; McGehee v. Lindsay, 6 Ib., 16, and cases there cited.] But in the present case, we are constrained to say, that the evidence will not sustain the party in his attempt to stultify himself. There is no evidence to connect him with the attempt to defraud the public, even if it was conceded there is sufficient to implicate the partners in the trading company. The merely contracting for the loan of bills with a company, which at the time had credit, and the making arrangements for a loan to another person, is not sufficient to identify the defendant with the conspiracy, if there was one in the first instance., Indeed, it would seem, if he was aiding and abetting in this object, he was engaged at a very low compensation, or that the confederates dealt with little liberality to each other.

It is useless to speculate, however, upon such points, as our opinion is clear, there is no evidence to connect the defendant with the intention to cheat the public, and therefore the request of his counsel, in this connexion, was properly refused.

We arrive at the conclusion that the judgment of the Circuit Court should be affirmed ; and in this we are not aware that injury to the defendant can be the result. If, at the commencement of this suit he was the bona fide holder of the bills of the company, it is conceived the recent decision of Lyon v. Moore and Chandler, will indicate his proper remedy ; but if he has speculated on the bills, upon his chance of a verdict, he is entitled to no relief here or elsewhere.

Judgment affirmed.