Palmer & Co. v. Scott & Co. , 68 Ala. 380 ( 1880 )

STONE, J.

The present case has been argued as if the plea of non est factum had been interposed by McConnell. We find no plea of any kind in the record. This, itself, secures a reversal of this case; for in the absence of a sworn plea, denying the execution of the acceptance of the order by McConnell, the character of defense relied on by him can not be made.—Code of 1876, § 3036. We suppose, however, that such plea had been interposed, and that by an oversight, it has been omitted from the record. We will consider the defense relied on, on the hypothesis that McConnell had put in a sworn plea, denying the execution of the acceptance by him.

The testimony shows, that the money sued for went into the business, and was used by the firm of D. M. Scott & Co., a mercantile partnership, and there is no proof that it was ever accounted for, or paid to the owner. This was money which, ex cequo et bono, belonged to the insurance company. The mercantile firm had no right to, or interest in it. It was money had and received by the mercantile partnership for the use of the rightful owner, the insurance company. This created a legal liability on the partnership, whether McConnell knew it or not. He can not retain the money, which went into, and was used by the firm, and refuse to account for it, on the ground that he was not informed of its use. Hogan & Co. v. Reynolds, 8 Ala. 59, and authorities on the briefs of counsel. Mercantile partnerships are presumed to have authority to borrow money, and each partner is presumed to have authority to sign the partnership name to paper, commercial or otherwise, in evidence or liquidation of the firm’s debts.—Richardson v. French, 4 Metc. (Mass.) 577; Coll. on Part. (6th Ed.), § 412. The Circuit Court erred both in the charge given and in the charge refused.

Reversed and remanded.

SOMERVILLE, J., not sitting.