Mizell v. Sylacauga Grocery Co.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The suit is on common counts against defendants as parties doing business under a firm name and style. Defendants pleaded the general issue and that denying the partnership existence.

The liability of partners for the contracts of the partnership and that imposed on one held out as a partner was the subject of extended discussion in Eggleston v. Wilson,211 Ala. 140, 100 So. 89. These recognized rules need not now be repeated. It is declared that in actions by strangers against partners or for the liability imposed on a partner, that same strictness of proof is not required to establish the relationship or liability as is required in suits between partners inter se, where the fact of the relationship must be proved. Cain Lumber Co. v. Standard Dry Kiln Co., 108 Ala. 349,18 So. 882; Paterson v. Mobile S. Co., 202 Ala. 471,80 So. 855. When the fact of the existence of the partnership has been otherwise established, the declarations of the partners, within the scope of the business, though not made in the presence of the other, are competent evidence. Eggleston v. Wilson,211 Ala. 140, 100 So. 89; Conner v. Ray, 195 Ala. 170, 70 So. 130; Clark v. Taylor, 68 Ala. 453; Alabama Fertilizer Co. v. Reynolds Lee, 85 Ala. 22, 4 So. 639; Id., 79 Ala. 501; Humes v. O'Bryan, 74 Ala. 64; Dicks v. McAllister, 20 Ala. App. 5,100 So. 631.

There was no error in permitting Carter's statements to plaintiff's witness, Golson, as to who composed the partnership — that Mizell was interested and a partner. The excerpt of the partnership agreement of the company recorded in the county of Coosa was furnished Carter by Mizell, and was recorded at his request or with his permission; the same was known to Golson at the time of and prior to the extending of the credit for which suit is brought. There are further tendencies of evidence to the effect that Carter stated to Golson that appellant was a partner; that appellant, having been sued as partner in another case, settled the same before trial was concluded by verdict; the failure of appellant to deny that he gave permission to Carter to have the excerpt of the contract showing the partnership relations recorded in the county and community where the credit was extended; and that appellant told Golson that said Turpentine Company had to have credit for merchandise, and he thought same would be paid. The foregoing made a jury question as to imposed liability as a partner and indicates there was no error in admitting the evidence in question. Contradictory tendencies of evidence are for the jury. Affirmative charges requested were properly refused under the special plea denying liability for the debts and obligations of that company. Jones v. Bell, 201 Ala. 336,77 So. 998; McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

The case was given to the jury on the question of fact whether or not Mizell was liable because he knowingly permitted himself to be held out as a partner. And the ruling on evidence will be considered in that light. There was no error in ruling as to evidence of the suit of Coosa County Turpentine Company against defendant under the general grounds of objection assigned, as the court is not required to seek proper objection as to the admissibility of evidence. Lester v. Jacobs, 212 Ala. 614 (10), 103 So. 682. However, according to the evidence, there was basis for the inference that the settlement of that suit was at appellant's instance, and that he was materially interested therein, or that he furnished the moneys for the effectuation of the same. The evidence was competent as tending to establish the existence of the partnership. Eggleston v. Wilson, supra. The other phase of the evidence, or inference therefrom, that defendant was the victim of circumstances in that suit, presented a jury question under all the evidence.

The appellant had offered, through the witness, Carter, a letter by Coosa County Turpentine Company to the Ark-Ala Lumber Company. He cannot therefore complain that Carter was permitted to explain that that company was threatening suit against the Turpentine Company for damages to the timber under the contract provision. The question now challenged was within the res gestæ of the writing of the letter. L. N. R. R. Co. v. Quinn, 146 Ala. 330, 39 So. 756; Gibson v. Gaines, 198 Ala. 583,73 So. 929; Bank of Phœnix City v. Taylor, 196 Ala. 665,72 So. 264.

There was no variance in allegata and probata. The complaint described as the partners Carter and Mizell. The fact that the evidence showed another partner is immaterial. Any or all of them may be sued. Rabitte v. Orr Bros., 83 Ala. 185, 3 So. 420.

Given charges Nos. 4 and 5, for plaintiff, under the evidence, were in accord with the decisions adverted to in Eggleston v. Wilson, 211 Ala. 140, 100 So. 89. Charges 6 and 9, requested by defendant, were properly refused, in that they ignore tendencies of evidence showing that Mizell knew that Carter was or had been holding him out as a partner in the county or community in question (and where the credit was extended), and that persons, including the plaintiff, might be misled in extending credit to the company on the assumption that defendant was a partner. Moreover, charge 6 fails to hypothesize "if the jury believe the evidence," and charge 9 improperly restricts the holding out as a partner to the plaintiff alone. This is not the rule of Eggleston v. Wilson, supra. The last named charge was covered, in the principles sought to be stated, in the court's oral charge.

The evidence showed that the Turpentine Company was such a commercial enterprise as, in the conduct of its business or operations, must have groceries, etc., for which the credit was extended. Charges 13 and 14 pretermitted the question of fact as to whether the Turpentine Company was or was not a "commercial concern." Charge 14 was incorrect in its implication to the jury that, in order for plaintiff to recover, the articles purchased must be such as customarily used in the operation of a turpentine business, when liability of parties may be predicated on knowledge, or holding out, that goods were being generally purchased and charged to the partnership. Lewis v. Isbell Nat. Bank, 198 Ala. 484,73 So. 655; McNeill v. Reynolds, 9 Ala. 313.

Charge 2 was refused properly as unduly singling out a part of the evidence. Alabama Power Co. v. Goodwin (Ala. Sup.)106 So. 239;¹ Miller v. Whittington, 202 Ala. 406, 80 So. 499; Councill v. Mayhew, 172 Ala. 313, 55 So. 314. Moreover, it ignores the tendency of evidence that agreement was recorded with Mizell's knowledge and consent.

Charge 11 unduly restricts the operation of the effect of the recorded agreement. It is sufficient that plaintiff know its contents or legal effect, though not directed thereto by Mizell or by Carter — it was evidence tending to show a holding out generally as a partner with the knowledge and consent of Mizell.

We have examined the evidence in the record, and find no reversible error.

The judgment is affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

¹ Ante, p. 15.

On Rehearing.