Brandon v. Progress Distilling Co. , 167 Ala. 365 ( 1910 )

SAYRE, J.

Donegan & Lacy had purchased whisky from the Progress Distilling Company. Suit for the purchase price was brought against Brandon on the theory that he was a member of the firm. This the appellant denied, claiming that he had been involved in the affairs of the partnership as a creditor only, and that his activity about the business' constituted nothing more than an effort to collect certain money for which he had become liable as a. surety, but not as a partner. This issue was tried by the court without a jury, and the chief contention here relates to the correctness of the conclusion reached in the trial court. We, however, have reached the conclusion that the case ought to be reversed on other grounds, and have pretermitted a decision on the question of fact.

There was certainly no error in the trial court’s dispositions of questions' of pleading. The suit had been commenced before a justice of the peace. The plaintiff there claimed the sum of $100, and had judgment for that amount. In the circuit court, on appeal, the plaintiff filed a complaint claiming an amount in excess of $100. By a motion to dismiss the cause, and by a plea in abatement, defendant advanced the proposition that the court was without jurisdiction, for the reason that the amount in controversy exceeded the jurisdiction of the court in which the cause originated, there having been no express remittitur of the amount claimed in excess of $100. The court overruled the motion to dismiss and struck the plea from the file. Defendant then moved to strike the complaint, which motion being granted, plaintiff amended its complaint by so framing it as to claim the sum of $100, with interest, and for that amount, with interest, judgment was rendered. In the result of all this there was no error.—R. & D. R. R. Co. v. Hutto, 102 Ala. 575, 14 South. 875.

At more than one point during his examination as a witness Donegan, husband of the Donegan of Done.gan & Lacy, was permitted by the court, over defendant’s objection, to state his judgment that defendant was a member of the partnership. There have been cases decided here in which it was held that a witness may state his judgment as to the existence vel non of facts where the facts stated were collective facts and the judgment of them was based upon knowledge of all the constitutent elements. Sometimes it is impracticable to lay before the jury all the details upon which the collective fact is based.—E. T. V. & G. R. R. Co. v. Watson, 90 Ala. 41, 7 South. 813; McVay v. State, 100 Ala. 110, 14 South. 862. It has been said that the soundness of the conclusion in such a case is to be tested on cross-examination. But it has never been held that a witness may usurp the function of the jury — or the court, when ii passes on the facts — by stating his conclusion as to the very fact in issue between the parties. The rulings have been to the contrary.—L. & N. R. R. Co. v. Landers, 135 Ala. 504, 33 South. 482; Moore v. Monroe Refrigerator Co., 128 Ala. 621, 29 South. 447. The error here involved was not relieved of injurious consequence by the fact that elsewhere in his testimony the witness detailed some facts which may have tended to show that defendant was a partner in the firm of Donegan & Lacy, but which, standing alone, were wholly inadequate to sustain that conclusion.

It was shown that checks, payable to plaintiff, had been draAvn by Donegan & Lacy to cover a balance due by them to plaintiff, and that these checks had not been paid. The checks, properly identified, were received in evidence. There was no error here. It was necessary that plaintiff should establish the indebtedness of Donegan & Lacy as well as defendant’s membership in that firm. The drawing of the checks -by a person Avho was confessedly a member of the firm constituted an admission of indebtedness. Not so, hoAvever, Avith the account admitted in evidence. That was nothing more than an unsworn memorandum, and was not coupled in evidence with any admission, express or implied, on the part of defendant or any other member ,of the alleged partnership, that the firm was indebted on account of the particular items set out in the memo-randum, and its admission was error.

In the construction. of statutes which require this court to review the conclusions and judgments of trial courts upon the facts and render such judgment as may seem right, we have settled down to the holding that Avhere a cause is tried by the court without a jury, the admission of illegal evidence raises a presumption of injury and requires a reversal, unless the remaining evidence is without conflict and is sufficient to support the judgment. In this case all things were in dispute. The evidence was in conflict, and it is hard to say, on consideration of the report of it in the record, on which side it preponderates. We cannot know how far the trial court was influenced in the findings of facts by the evidence erroneously admitted. The judgment, Ave think, ought to be reversed, and the cause remanded for another trial.-Bank of Talladega v. Chaffin, 118 Ala. 246, 24 South. 80; Black v. Pate, 130 Ala. 514, 30 South. 434; Miller v. Mayer, 124 Ala. 434, 26 South. 892.

Reversed and remanded.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.