Bradley Fertilizer Co. v. Pollock & Co. , 104 Ala. 402 ( 1893 )

HARALSON, J.

1. If the $462.49, deposited by Cooke with Pollock & Co., as to the amount of which there is no dispute, was owing by Pollock & Co. to Cooke, at the date of the service of the garnishment, in such manner as that Cooke was entitled to recover it by suit in assumpsit against Pollock & Co., the plaintiff was entitled, by virtue of its garnishment, to its judgment against the garnishees for that sum. Whether or not Cooke,in an action to recover the money against Pollock & Co., was entitled to a judgment for it, depends upon, another question, viz., whether Pollock & Co. were entitled to set-off their claim against Cooke, Phillips & Walker, of which firm Cooke was a member — and which indebtedness was larger than the claim of Cooke against them — in such an action by Cooke.

2. Under section 2605 of the Code, any member of a partnership may be sued for the obligation of all, and this has been the statutory regulation on that subject, since the act of 1818. — Clay’s Dig., p. 323. This statute has been the subject of repeated construction in this court, and has been several times re-enacted, with such construction upon it, and we must presume in its re-enactment, the legislature knew of the construction which had been placed on the former statute by the several decisions of this court, and adopted it as a part of the statute.

The case of Hoyt, Ford & Robinson v. Murphy, 18 Ala. 317, involved the same question here raised. Murphy & Brack, of which firm J, H. Murphy was a member, owed Hoyt, Ford & Robinson, and they owed Murphy & Brack, which latter firm" had been dissolved. On its dissolution, Brack assigned to Murphy his interest in the partnership assets, in consideration of which Murphy agreed with, him to pay the debts of the firm. Murphy sued Hoyt, Ford & Robinson, on one of the assets assigned to him by Brack, and the defendants pleaded as a set-off against his claim, a demand due them from the late firm of Murphy & Brack. In delivering the opinion of the court, Judge Chilton, after stating that it was difficult to determine upon what principle the right of set-off of such a demand is denied when one of the partners sues a creditor of the firm, says : “But, this court has heretofore settled the construction of the statute, which authorizes the partners to be sued separately. In Pierce v. Pass, 1 Por. 232, it was held that the individual debt of one partner could not be set-off against a debt due the firm,” and citing Von Pheel v. Connally, 9 Port. 452, to the same effect, he adds : “There are other decisions to the same point, but these may suffice to show the settled construction which this court has placed upon the statute, and from which we do not feel at liberty to depart. ’ ’ The demand of the defendants was not allowed to be set-off against the debt due by them to the plaintiff. This decision found approval in the subsequent case of Duramus v. Harrison, 26 Ala. 326. See also Fancher Bros. v. Bibb Furnace Co., 80 Ala. 485 ; Cannon v. Lindsey, 85 Ala. 201.

3. From these rulings it appears, the debt of Cooke, Phillips & Walker, to J. Pollock & Co., was not the subject of a set-off against the debt which they owed Cooke, and was liable to plaintiff’s garnishment, unless there had been an agreement between Cooke and Pollock & Co., before the writ of garnishment was served, by which Pollock & Co. had the right to credit it on their debt against Cooke, Phillips & Walker.

The evidence on the part of the garnishees tended to show, that Cooke agreed with Pollock in the presence of Scales, on the 27th of January, 1892, at the time the statements were made out and furnished to him, showing the balance due by his firm to garnishees, and what garnishees were owing him on his individual deposit with them, that garnishees might apply the $462.49 due him by them, to the account of Cooke, Phillips & Walker , due to garnishees. If this was true, then garnishees had the right to so apply it, and it was .not subject thereafter to plaintiff’s garnishment. — Hoyt, Ford & Robinson v. Murphy ,18 Ala. 317, supra. But Cooke, on the other hand, denies that there was any such an agreement, and swears that he told them, that his money was not to be used for the partnership debt, and that he would not be liable for any of the debts of his firm for goods thereafter bought by them from garnishees, unless he approved their purchase. The evidence tended to show, that this notice was give to Pollock & Co., before they sold the goods which constituted the consideration of their account against defendant’s firm. It is held on good authority, that where a defendant, a member of a firm to which goods were sold, gave notice to the vendors not to supply goods to his firm without his order or approval, and the plaintiff, notwithstanding, supplied goods to the firm, he is not liable for them. — 1 Lindley on Partnerships, 170, and authorities cited.

Whether or not the defendant agreed to allow his debt against Pollock & Co. to be applied towards the payment of his firm’s debt to them, and whether or not he gave the notice to them not to sell any goods to his firm, without his approval, were each disputed facts, which the court,by its general charge in favor of the garnishees, should not have taken away from the j ury. It was their province, and not that of the court, to determine these disputed facts.

4. It is urged by the appellee’s counsel, that this charge may be sustained, and the case affirmed, for the reason, that the plaintiff offered no evidence of its judgment against the defendant, citing Case v. Moore, 21 Ala. 758; Jackson v. Shipman, 28 Ala. 488; Lee v. Ryall, 68 Ala. 354 ; Brake v. Curd, 102 Ala. 339.

This principle is certainly true, where a judgment is rendered against a garnishee on his answer, without a contest, unless there has been a waiver of it by the garnishee. Whether it applies where there isa contest, as here, we need not decide. Such proof, in any event, is intended for the protection of the garnishee. The judgment against the defendant, however, is well described in the garnishment, which was sued out in its aid, and the garnishees made answer to it. It would seem that this was an admission of the judgment described in the garnishment, and was sufficient proof of its existence as against them in this proceeding. — Jackson v. Shipman, 28 Ala. 493 ; Curry v. Woodward, 44 Ala. 306 ; Schamagel v. Whitehurst, 103 Ala. 260. Besides, the record in forms us, that this charge was given on no such ground. It is stated, the plaintiff's counsel offered to introduce the judgment in evidence, and the court informed them, it would take “judicial cognizance of such judgment.” If we can attribute any meaning to this statement, it is, that the judgment having been rendered in the same court, and in a branch of this same case, when the proposition was made to read it in evidence, the court meant it would regard it for the purposes of the trial as read. The court had no use for the evidence for itself, disconnected with its submission to the jury. The garnishees made no objection to what was being done.

On no conceivable grounds was the general charge in in favor of the garnishees proper.

Reversed and remanded.