Citation Numbers: 109 Ala. 485
Judges: Head
Filed Date: 11/15/1895
Status: Precedential
Modified Date: 7/19/2022
The complaint shows the instrument declared on was executed by a partnership composed of the defendant and another. Though executed under seal, it was not such an instrument as the law requires to be sealed. Being executed by a partnership, it may be enforced as a simple contract, which such an entity is authorized to make, by one of its members, -acting within, the scope of the partnership venture. See authorities on brief of appellee’s counsel. But the plea oVnon est factvlm cast the burden upon plaintiff to prove that the instrument was executed bj^ the defendant, or some one by him lawfully authorized to bind him. If it was executed by his alleged co-partner, the plaintiff should prove the fact, the existence of the partnership, and that the contract was within its scope, or else special authority from the defendant to execute it for him. The plea was, in ■effect, a denial of all these facts. Special replication was unne'cessary. The plaintiff could Imve made and did make the necessary proof to overcome the plea; but in addition to the general issue, it saw. fit to file two special replications, thereby inducing a test of their sufficiency by rulings of the court upon demurrers filed by the defendant. The first replication was good. It showed the existencé of the partnership, and that the contract was made and executed by a member thereof, for the partnership, and within t'he scope of its business. The second replication wTas bad. It, in legal effect, confessed the want of defendant’s authority, general or .special, for the execution of the instrument, and alleged
The second and third grounds of .demurrer to the second plea were good, and properly sustained. The concluding averment, — that the plaintiff had full knowledge of all the facts alleged in the plea, — does not sufficiently show when nor how such knowledge was acquired, nor what relation it had to, or effect upon, the alleged agreement of the attorneys of the payees of the instrument. The plea is obviously bad for other causes not assigned in the demurrer.
The court correctly gave the affirmative charge for the plaintiff.
Affirmed.