Teague, Barnett & Co. v. Lindsey , 106 Ala. 266 ( 1894 )

BRICKELL, C. J.

— The entries in the books of Thornton, made by the vendor, Lindsey, prior to the sale to the claimants, have nn reference to the title to the goods in controversy, and were inadmissible. The acts or declarations of a vendor,prior to a sale, notin disparagement of his title ,are not competent evidence against the vendee. The evidence proposed to be introduced of the subsequent conduct and declarations of Lindsey in reference to one of the claims transferred to the vendees, was equally inadmissible. The acts or declarations of a vendor subsequent to a sale, of which'the vendee has not knowledge, and in which he does not acquiesce, are, as to the vendee, res inter alios acta, and cannot be permitted to affect him.

There are certain well settled miles, which must be observed in the reservations of exceptions to instructions given, or to the refusal of instructions requested. The failure to observe these rules, not infrequently, renders a revision of the instructions, impracticable, without violence to the rules upon which an appellate court is bound to proceed. Error is never presumed; it must be shown affirmatively; it is not enough, that an appellate court can not see that the judgment of the primary court was right; unless shown tobe wrong, the presumption of rightfulness prevails. And' a bill of exceptions must show with precision the error of which the party excepting complains. It is upon these rules, the rules to which we'refer, in relation to the reservation of exceptions to instructions given or refused are based. If, as in the present case, the reservation is of an exception to the refusal of several instructions requested, the exception must point out clearly the instruction to which it is directed. If it be directed to the refusal of instructions collectively, it can not be sustained, unless all of them ought to have been given. — 3 Brick. Dig. 80, § 41; Horn v. State, 98 Ala. 23.

The statute requires the judge presiding, when instructions in writing are requested, (and he'is under no duty to give an instruction not in writing), to write thereon, “Given,” or “Refused,” signing his name thereto. The statute manifestly contemplates the reqiiest of separate, single, not of collective, or a mass of instructions. In this case, two or more instructions were written on a sheet of paper, presented to the judge, and he wrote on the margin of the paper the word refused, signing his name thereto. The refusal' is necessarily referred to the instructions as requested — to them collectively, and not to each separately; and this compels the inquiry whether the instructions, as an entirety, are correct. If they be not correct as a whole, there is no revisable error in their refusal.

The first and second instructions were requested together. The first instruction was intended to assert the familiar proposition, that fraud may be proved by circumstances; that positive, direct evidence of it, as distinguised from circumstantial evidence, is not necessary.' It passes, however, beyond the precise statement of the proposition, and purports to give a reason for the proposition, which has been often assigned when sales by a failing debtor are made to a creditor. The practice of injecting arguments into instructions, there is a necessity for condemning at every term of the court; and counsel requesting them, take the risk of refusal by the primary court, and if they are refused, the action of the court is not an error revisable. It is of consequence, unnecessary to consider the second instruction.

The third, fourth and fifth instructions were conjoined and requested. The third can not be accepted as stating a correct legal proposition. The relationship — the kindship, as in this case — of vendor and vendee is not of itself a badge of fraud, and of itself does not demand clearer proof of the good faith of the parties. It is a fact, as would be the existence of confidential relations between the parties, relevant in all cases, but dependent for its value upon other circumstances with which it may be connected. When fairly analyzed, the meaning of the instruction is, that from the relationship fraud will be presumed, unless there is clearer proof of good faith, than would be sufficient to satisfy the jury of the good faith of the parties, if the relationship did not exist; in other words, in violation of the maxim of the law that fraud is not presumed, the presumption is raised and indulged from a single fact, the relationship of the parties, unless it is neutralized by countervailing evidence. Beside, without explanation, or additional instruction, the tendency of the instruction was to confuse the jury. What measure of proof, was intended by the expression clearer proof, was left undefined, committed to the conjecture or speculation of the jury. In all its aspects, the instruction was erroneous, and was properly refused; and of consequence, an examination of the instructions numbered four and five, is not necessary or proper.

The sixth and seventh instructions were, like the preceding instructions conjoined. Each of them may assert a correct legal proposition, but they are without evidence to support them. The uncontroverted evidence is, that the rate of interest the vendor'agreed to pay, and agreed to pay long prior to the sale, was the rate of interest the vendees had to pay for the money borrowed to loan them. There was no fact in evidence to show, that the excessive interest was added, to employ the words of the instruction, “with the view of increasing the debt, so as to make it equal the price,” agreed to be paid for the goods, notes and accounts. The seventh instruction is, if possible, more objectionable than the sixth. Without conflict the evidence shows that the inclusion of the separate debt of one of the partners in the note the vendees had indorsed for the vendors, was not known to, nor had they any notice of it, until three months or more after the sale and after payment of the note. There is no error in the refusal of instructions which are abstract, not relevant to facts there is evidence tending to prove. It is seldom, such instructions are harmless, and they may mislead the jury, leaving them to infer the existence of facts which will support the instruction, contrary to the evidence and to its legal tendencies. — ! Brick. Dig. 338, § 41.

The eight and ninth instructions may be considered in connection. A partnership in contemplation of law, is an entity distinct from the members who compose it, and if the partnership is insolvent, or in failing circumstances, an appropriation of the partnership property or assets to pay the separate debt of a partner, is a fraud upon partnership creditors. — Pritchett v. Pollock, 82 Ala. 169 The capital of a partnership is that which each partner agrees to contribute as the basis for beginning or continuing the business. — 1 Bates on Part , § 251. These contributions do not form partnership debts ; and if a member obtain them on his own' credit, the fact that they pass into and enure to the benefit of the partnership, does not render the partnership liable to his creditor. — 1 Bates on Part., § 446. But when the rights of partnership creditors have not intervened, the separate debt the partner has so created, by the consent of the several partners, may be converted into a partnership debt. — 1'Bates on Parc., § 515. In the original purchase of the goods from Thornton, each partner created a separate debt. If the purchase was not in point of time precisely coincident with the formation of the partnership, it was made in contemplation of it, and of a partnership on a basis of equality between the partners. On the commencement of the business of the partnership, their separate debts were converted into the debts of the partnership, the partnership not then owing any other debt. The debts in the new form given them were founded on an adequate and valuable consideration, and whatever may have been the relation of the partners separately to Thornton, they became, as to the partners, partnership debts. The instructions we are considering ignore the uncontroverted evidence showing that the separate debts to Thornton were converted into partnership debts. They were of consequence, inappropriate to the evidence, and properly refused. — 3 Brick. Dig. Ill, §§ 79-83.

We do not deem it necessary to prolong this opinion by a discussion of the remaining instructions, to the refusal of which exceptions were reserved. They are either in themselves faulty; or they were conjoined, the good and bad so mingled, that for this reason the court below properly refused them.

We find no error in the record, 'and the judgment must be affirmed.