Cannon v. Lindsey , 85 Ala. 198 ( 1887 )

SOMEBYILLE, J.

1. One member of a partnership, whether existing or dissolved., can not appropriate the assets of the firm by transferring them in satisfaction of his individual debt due to such transferree, without the authority or consent of the other members of the firm. Such transaction is considered a fraud on the other partners, and the title to the joint fund or property is not divested in favor of the separate creditor, whether he knew it to be partnership property or not. “In short,” as said by Judge Story in a leading case on this subject, “his right depends, not upon his knowledge that it was partnership property, but upon the fact, whether the other partners had assented to such disposition of it or not.'” — Rogers v. Batchelor, 12 Pet. 221; Parsons on Partnership (2d Ed.),pp. *113, note; *430; Halstead v. Shepard, 23 Ala. 558, 572; Pierce v. Pass & Co., 1 Port. 232; Burwell v. Springfield, 15 Ala. 273; Nall v. McIntyre, 31 Ala. 532; Dob v. Halsey, 16 John. Rep. 34; Gram v. Caldwell, 5 Cow. 489; Evernhim v. Ensworth, 7 Wend. 326; Fancher Bros. v. Bibb Furnace Co., 80 Ala. 481.

The case of White v. Toles, 7 Ala. 569, which seems opposed to this view, is possibly distinguishable from this case, on the ground that the personal services of a partnership, not its assets, were involved in the transaction, the defendant stipulating in advance that certain work was to be done by one of the plaintiffs, and paid for by his boarding with defendant. If not thus distinguishable, the decision is opposed to many other decisions of this court, and is wrong in principle.

2. Closely analogous to the foregoing principle is the rule, that where suit is brought on a partnership demand, whether in the name of the partnership or their assignee, the defendant can not set off against the partnership demand an individual debt due to him from one of the partners. There is not only a want of mutuality between the two demands, but the effect of allowing such a set-off would be an indirect appropriation of partnership assets to the payment of the private debt of one of the individual partners. — Watts v. Sayre, 76 Ala. 397; Clark v. Taylor, 68 Ala. 453; Evans v. Sims, 37 Ala. 710; Ross v. Pearson, 21 Ala. 473.

If the horse sold by Walters to the defendant was the property of the partnership of Moses Walters & Co., Walters would have no right to make any arrangement with defendant, by which the property could be appropriated, either by set-off or payment, in satisfaction of his private debt to the defendant. The charge given by the court, at the request of the defendant, excluded this phase of the case from the consideration of the jury, and was on this ground erroneous.

3. If the defendant signed the note in question without any fraud, deceit or misrepresentation being practiced on him, by which he was induced to do so, it would be no defense to this suit that he neglected to read the instrument, or have it read to him. — Burroughs v. Pac. Guano Co., 81 Ala. 255; Goetter v. Pickett, 61 Ala. 387; Pac. Guano Co. v.Anglin, 82 Ala. 492; Dawson v. Burrus, 73 Ala. 111. If, therefore, the horse sold to the defendant belonged to the partnership of Moses Walters & Co., and the note given for the horse was made payable to the partnership, and was assigned by the payees to the plaintiff, in satisfaction of a claim held by him on said partnership, it would avail the defendant nothing that he neglected to observe the fact that the note was so payable. He could neither defeat the action on the plea of non est factum, in the form in which it appears in the record, nor prevent a recovery by a set-off of any demand held by him against Moses Walters individually.

4. This plea of non est factum, however, not being a dilatory plea, was not demurrable for duplicity; for, under our system of pleading, redundancy, whether of good or bad matter, does not vitiate, except in the case of dilatory pleas. Lewis v. Lee County, 66 Ala. 480; Houston v. Hilton, 67 Ala. 374. The court did not err in overruling this ground of demurrer. And whatever may be the imperfections of the plea, none of the objections urged by the demurrer were well taken.

5. There was much in the testimony of both the defendant Lindsey, and the witness Smith, which could have been excluded, had objection been taken to such illegal parts alone. But some parts of each were competent. ‘The objections being taken to the entire testimony of each, including the legal as well as the illegal parts, without any attempt to separate the one from the other by specification, were properly overruled.

Eor the error of giving the charge requested by the defendant, the judgment is reversed, and the cause remanded.