Clark v. Jones & Brother , 87 Ala. 474 ( 1888 )

CLOPTON, J.

The instructions of the court based the liability of defendant for the price of the goods, to recover which appellees bring this action, on two hypotheses: first, as the real and sole purchaser; second, as a member of a partnership for whom the goods were bought. As to the first ground of liability, the contestation is, whether the promise of the defendant to pay for the goods comes within the provision of the statute of frauds relating to “every special promise to answer for the debt, default, or miscarriage of another.” In solving this question, the main and decisive inquiry is, Was the promise original and absolute, or collateral and conditional ? As the plaintiffs seek by the action to charge the defendant with the price of the goods delivered to the Wetumpka Lumber Company, the rule applicable, and which must govern, may be thus stated: If the goods were sold on the sole credit of the defendant, his promise is original, and without the statute; but, if any credit was given to the company, who received the goods, the promise is collateral, and within the statute. In the latter case, it is immaterial to which party the credit was principally given. Boykin v. Dohlande, 37 Ala. 577. To bring such promise within the operation of the statute, there must be concurrent liabilities, each of which is capable of being enforced.

The evidence on the part of the plaintiffs tends to show, that, on application being made by defendant to obtain goods for the company, they refused to sell on the company’s credit, but proposed to let tbe company have tbe goods on tbe defendant’s credit, to wbicb be agreed. On cross-examination of one of tbe plaintiffs, it was brought out tbat, at tbe time defendant applied to get tbe goods, tbey agreed, for all goods not paid for by tbe acceptance of McEachin, wbicb defendant proposed to turn over to them, to take, at tbe expiration of thirty days, tbe company’s acceptance, with defendant’s indorsement. In bis testimony, tbe defendant denies tbat be offered, directly or indirectly, to become responsible for tbe goods; but did not otherwise contradict tbe evidence on behalf of plaintiffs, as to what occurred at the time. There is an absence of evidence tbat tbe company made, at tbe time or previously, application to procure tbe goods, or assumed any liability therefor, other than tbe application and promise of defendant. Taking and considering all tbe words used, it is apparent that tbey are susceptible of two meanings: one importing a collateral undertaking to indorse the company’s acceptance, to wbicb tbe statute applies; tbe other an original and independent promise to pay for tbe goods, with an understanding or agreement tbat plaintiffs would take, at tbe expiration of thirty days, in lieu thereof, tbe company’s acceptance with defendant’s indorsement — a novation of tbe primary promise, wbicb takes the statute out of tbe case. "When tbe words employed are susceptible of two meanings, tbe question must necessarily be submitted to the jury to determine in which sense tbey were used and understood. — Tliroop Yerb. Ag., § 180.

The mere fact tbat tbe goods were charged to tbe company on tbe books of plaintiffs, in tbe manner shown, is not conclusive that any credit was given to the company. Tbe manner in wbicb tbe account was entered on tbe books is consistent with tbe intention of tbe defendant to bind himself as tbe real purchaser, especially when it appears from tbe uncontradicted evidence that tbey were so charged by his request, and for bis accommodation. Tbe same observations apply to tbe subsequent taking of the unindorsed acceptance of tbe company, and its renewal by note. There is evidence tending to show tbat tbe acceptance and note were not taken as payment, and that defendant was informed at tbe time that plaintiffs would not release him from liability. Giving credit subsequently to tbe company did not, under tbe circumstances, operate to change tbe character of tbe original promise. These were facts and circumstances to be referred to tbe -jury, to determine whether credit was given' exclusively to defendant. — Sanford v. Howard, 29 Ala. 684; Ledlow v. Becton, 36 Ala. 596. On the entire evidence, it can not be said, as matter of law, that any credit was given to the company, or that the company incurred any enforceable liability, at the time the goods were obtained aDd the promise of defendant was made.

The charges of the court, to the effect that, if the goods were sold at the request of the defendant, and on his credit, he is liable, and the statute of frauds would be no obstacle to a recovery, is in accord with the foregoing principles. If the hypothesis of the charge be true, the goods were sold on the sole credit of the defendant; that is, were really sold to him. — Boykin v. Dohlande, supra. The charges properly submit to the jury the determination of the facts supposed, on consideration of the entire evidence. If the defendant apprehended that the jury might be misled by the generality of the terms of the instruction, he should have asked qualifying charges, based on the hypothesis in his favor which the evidence tends to establish.

In relation to the second ground of liability, the court instructed the jury, if the goods were sold to a firm of which the defendant was a member, he was liable in this action. The first objection urged to this charge is, that there is no evidence on which to predicate an inference that the Wetumpka Lumber Company is a partnership. It may be conceded, that, as the name may fairly import either a corporation, an unincorporated association, or a partnership, no presumption arises from the mere name that the company is either the one or the other. It may.be further conceded, that, as plaintiffs declare against defendant individually, and yet seek to charge him as a partner, it is incumbent on them, in the first instance, to show a partnership; but, when they have introduced evidence which prima facie establishes a partnership, or from which it may be reasonably inferred, the burden is cast on the defendant to show incorporation, when he seeks to avoid individual liability on the ground that the company is a corporation. At the time the defendant proposed to purchase the goods, he represented that the company was composed of himself, his son and another, and that it was solvent, without any assertion or intimation that it was a corporation. This representation prima facie imports a voluntary association of three persons, combining their capital, labor and skill in the business, which was carried on for their common benefit. The fact that the company had a president and secretary is not conclusive of corporate character. The material respects, in which unincorporated associations differ from a partnership, are, that the former are generally composed of a larger number of persons than the latter, and the business is usually conducted by officers acting for all the members. No presumption of incorporation arises from the fact that the business of the company was transacted by a president and secretary. There was sufficient evidence, whether weak or strong is immaterial, in the absence of any other evidence of incorporation, on which to predicate the charge.

It is further objected, that proof of a demand against a partnership, of which defendant is a member, does not authorize a recovery on a complaint which counts on an account stated between plaintiffs and defendant individually, and for goods sold to him alone. This question should be regarded as res adjudícala in this State. Under the statute, which declares, “any one of the associates, or his legal representative, may also be sued for the obligation of all,” it has been uniformly held, that a partnership creditor may sue one of the members of the firm, for a debt contracted in the partnership name, whether by account or otherwise, and declare upon the demand as his individual liability. — Code, 1886, § 2605; Duramus v. Harrison, 26 Ala. 326; Hall v. Cook, 69 Ala. 87; McCulloch v. Judd, 20 Ala. 703.

Affirmed.