Pierce & Campbell v. Whitley , 39 Ala. 172 ( 1863 )

R. W. WALKER, J.

The question in this case is altogether one of fact, depending upon evidence which it would be difficult, if not indeed impossible, to reconcile. Anything like a minute discussion of this evidence would be unprofitable, occupying much space, but settling no legal principle, and establishing no precedent for the decision of other cases. We therefore content ourselves with saying that, after a careful consideration of the testimony, we concur with the chancellor in thinking that the weight of the evidence establishes the existence of a partnership substantially as alleged by the complainant.

The argument, that the payment by the complainant of his share of the capital stock was a condition precedent to his becoming a partner, is not sustained by the evidence. It is inconsistent with the frequent admissions of the defendants, made long after the complainant became connected with the business, that the latter was a member of the firm. It is, in an especial manner, contradicted by the testimony of Mr. Haralson, and by the written articles prepared by him, which, though never signed, were yet, as he states, drawn at the instance of, and in strict accordance with directions received from all of the parties. These articles distinctly show that the operations of the parties “ as partners” began in 1855; and while the complainant was undoubtedly to be liable for an equal share of the capital stock, the testimony of this witness, as well as other evidence in the case, precludes the idea, that complainant’s payment of the same was considered as a condition precedent to the vesting of his partnership rights.

Nor do we think that the parties designed that the existence of the partnership was to depend upon the execution of written articles of partnership. On the contrary, he partnership is shown to have existed for nearly, if not quite two years, before any effort was made to reduce its terms to writing; and long after the attempt to do so had been made, and had proved unsuccessful, we find the defendants distinctly admitting the continuance of the partnership. The circumstances convince us that the parties desired to have a written agreement, not as a means of establishing a partnership which had not existed before, but as furnishing a convenient memorial of the terms of a partnership already formed and in operation. After receiving the benefit of complainant’s services as a partner, and recognizing him as such, for three or four years, it is too late for the defendants to set up either his non-pay-ment of his portion of the capital stock, or the non-execution of written articles of partnership, as proof that no partnership ever existed. — See Stein v. Robertson, 30 Ala. 286; Fogg & Vanderslice v. Johnston, 27 ib. 432.

The appellants have not brought to our attention any error of which they can complain ; and the decree must, therefore, be affirmed.