Marble & Son v. Lypes & Co. , 82 Ala. 322 ( 1886 )

SOMEBYILLE, J.

— 1. The court below very properly ruled, that it was incompetent to prove the existence of the alleged partnership between the defendants Lypes and Beggs by common report, or general reputation. This was one of the controverted ' facts in the case, upon which the liability of Beggs chiefly depended, and the proposed evidence was, as to him, clearly hearsay and inadmissible. Hogan v. Douglass, 2 Ala. 499; Humes v. O’Bryan, 74 Ala. 65, 81.

2. The existence of the partnership being controverted, the second charge requested by the plaintiffs was erroneous, in assuming as a fact, “shown by the evidence,” that the defendants had admitted the truth of its existence. — Humes v. O’Bryan, 74 Ala. 84.

3. It was immaterial that Beggs permitted himself to be held out to the public as a partner of Lypes, unless the plaintiff was misled or injured by contracting the debt in suit on the: faith of this fact, thus dealing with the alleged firm in ignorance of the true relationship of its members. The principle upon which such a liability is permitted to be fastened on one, who in fact is not a partner, is analogous to that of an estoppel in pais; and there there can be no such estoppel, in the absence of one’s being misled to his prejudice by a supposed fact, either positively asserted, or tacitly admitted by the party whom he seeks to hold liable. Humes v. O’Bryan, supra; Parsons on Part. 71, 412-13; 2 Greenl. Ev. § 283. The fourth charge ignored this principle, and was properly refused.

Affirmed.