Alabama Fertilizer Co. v. Reynolds

• Citation: 4 So. 639,85 Ala. 19
• Parties: ALABAMA FERTILIZER CO. v. REYNOLDS ET AL.
• Decision Date: 22 March 1888
• Court: Supreme Court of Alabama

4 So. 639

85 Ala. 19

ALABAMA FERTILIZER CO. v. REYNOLDS ET AL.

Supreme Court of Alabama

March 22, 1888

Appeal from circuit court, Barbour county; J. M. CARMIACHAEL, Judge.

This action was brought by the appellant, a domestic private corporation, against John A. Reynolds and R. M. Lee, as partners, doing business under the firm name of Reynolds &amp Lee. The action was founded on three promissory notes, and was commenced on March 31, 1885. The defendants jointly pleaded the general issue, and Reynolds filed a special plea of non est factum, verified by affidavit, averring that the note was not signed by him, nor by any one who was authorized to bind him; and the cause was tried on the issue joined on these pleas. Judgment for defendant Reynolds, and plaintiff appeals. The charges, which were in writing, to which reference is made in the opinion, as requested to be given by the plaintiff, and refused by the court, to which refusal the plaintiff separately and severally excepted, are as follows: "(1) The burden of proving notice to the plaintiff that Reynolds was not to be bound as a purchaser of the fertilizer is upon him, (Reynolds;) and if the witnesses are equally credible, and if their evidence is at direct variance as to the fact whether such notice was given or not then he (Reynolds) has not proved such notice, and the plaintiff are entitled to recover in this action. (2) If the jury believe from the evidence that the firm of Reynolds &amp Lee had been engaged for two years, under the active management of Lee, in buying and selling guano on the firm account, it is too late for Reynolds to allege that the legitimate business of the firm was confined to selling on commission, and that guano had been bought without his knowledge or consent. (3) If the jury believe from the evidence that Reynolds, by design or negligently, allowed the use of his name in ths firm of Reynolds & Lee by R. M. Lee in the business of buying and selling guano in Clayton for one or two years, and that the plaintiff was induced to give credit to such firm because Reynolds was a member of it, then Reynolds is liable for the debt plaintiff claims of the firm although the jury may find from the evidence that Reynolds had at one time notified plaintiff that he was not to be bound for liabilities of the firm incurred in a commission guano business. (4) If the witnesses who gave testimony as to whether or not notice was given limiting Reynolds' liability are equally credible and honest, and they are in direct conflict in their evidence on that point, the defendant Reynolds cannot be said to have proved that such notice was given to the plaintiff; the burden of proving such notice being upon Reynolds. (5) To establish a fact in a civil cause, the proof of it must not merely slightly overbalance the proof against it, but it must so greatly overbalance it as to reasonably and fairly show that it outweighs it. And if the testimony of Reynold's not being a partner does not clearly outweigh the testimony that he was, and leave the minds of the jurors satisfied that he was not a partner of Lee when he signed the notes sued on, the verdict must be for the plaintiff." The defendant requested the court to give the following charges, which were in writing, and referred to in the opinion, which the court gave, and the plaintiff separately and severally excepted to the giving of each. "(1) If the jury believe from the evidence that the contract or agreement between Reynolds and Lee was that fertilizers should be sold by them solely on commissions, and that neither Lee nor Reynolds, nor Reynolds & Lee, should have power to make any purchase, and that the only benefit or interest Reynolds had in the adventure of Reynolds & Lee was that he (Reynolds) should have what fertilizers he desired for his own use, with a discount, from the price, of the commissions, then there was no partnership in fact as between Reynolds and Lee or inter sese. (2) If the jury believe from the evidence that the Alabama Fertilizer Company, through its agent, Storrs, or its president, Rogers, either of them, received notice from Reynolds and Lee, one or both, before the sale of the fertilizers which constitute the consideration of the notes sued, that Reynolds had no interest or benefit in the adventure of Reynolds & Lee except that he (Reynolds) should have or get what fertilizers he desired for his own use, with a discount, from the selling price, of the commissions, and that the adventure of Reynolds & Lee was wholly for selling fertilizers on commissions, and not otherwise, then the jury cannot find their verdict for the plaintiff as against Reynolds, but must find for the defendant Reynolds. (3) If the business of Reynolds & Lee was formed to carry on the sale of guano on commission alone, and Capt. Storrs, as the agent of plaintiff, received notice from Reynolds of the character of the business, and the extent of Reynolds' interest, before he sold the guano to Lee, and that Lee bought the guano without Reynolds' knowledge or consent, the plaintiff cannot recover of Reynolds, if they find that the notes sued on were signed by Lee in the firm name, without Reynolds' knowledge or assent. (4) If Storrs was informed by Reynolds on the train that the business was only a commission business, this was notice to Storrs of the character of the partnership; and, in dealing with the firm afterwards, Storrs had notice of the character of the business, if the evidence...