Howard & Son v. Cowan

Broyles, J.

1. The code provision that when partners are being sued in their firm name, it is unnecessary to prove the partnership unless it is denied by the defendant in a verified plea (Civil Code, § 3166), means merely that where no verified plea of no partnership has been filed, the burden of proving the partnership is not put upon the plaintiff; and it follows that the fact of the partnership, in the absence of proof to the contrary, will be conclusively presumed. However, in a case in which the defendant proves by uncontradicted evidence, which is not objected to, that no such partnership as alleged in the petition existed at the time that the plaintiff’s cause of action arose, a verdict finding against the alleged firm, in the absence of an appropriate amendment to the petition, should be set aside and ,a new trial granted, notwithstanding the defendant’s omission to file a verified plea of no partnership, See Martin v. Lamb, 77 Ga. 252 (3 S. E. 10); Green v. Willingham, 100 Ga. 224, 226 (28 S. E. 42); Stricklin v. Crawley, 1 Ga. App. 139, 142 (58 S. E. 215). Under the above ruling, the verdict in this case against the partnership was contrary to the evidence and the law, and the court erred in refusing to grant a new trial.

2. Under repeated rulings of this court and of the Supreme Court, the refusal of the trial judge to direct a verdict is never error.

3. As the case must be retried, and the evidence on the new trial may vary from that in the present record, we forbear to express an opinion as to whether, under the facts of the ease, the defendant could be held liable for damages by the plaintiff.

. Judgment reversed.

Russell, C. J., absent.