Cannon v. Lindsey

• Decision Date: 02 February 1888
• Citation: 3 So. 676,85 Ala. 198
• Parties: CANNON v. LINDSEY.
• Court: Alabama Supreme Court

3 So. 676

85 Ala. 198

CANNON v. LINDSEY.

Supreme Court of Alabama

February 2, 1888

Appeal from circuit court, Fayette county; S. H. SPROTT, Judge.

Action on promissory note, by assignee against maker. This was an action brought by E. W. B. Cannon, as the executor of the last will and testament of Isaac Cannon, deceased, against the appellee, Levi Lindsey, upon a promissory note-said note alleged in the complaint to have been executed by the defendant to Moses Walters & Co., "and duly assigned for valuable consideration to plaintiff." The defendant put in a sworn plea of non est factum, which was in these words: "And the defendant, for answer to said complaint, says that he did not execute the note sued on in this action, as a note due to Moses Walters & Co." The plaintiff demurred to this plea on the ground of duplicity-in denying the execution of the note, and in trying to set up a defense by way of set-off. The court overruled this demurrer and the plaintiff excepted. Issue was joined on the plea of the general issue, set-off, and payment. The note, as shown by the bill of exceptions, was introduced in evidence, and was in words as follows: "Twelve months after date, I promise to pay to the order of Moses Walters & Co. the sum of seventy-five dollars, at F. C. House, value received." Signed by the defendant, and dated, "Fayette Court-House, Dec. 30, 1878." There was an indorsement on the back of the note showing that there was a credit of $25 on the note; and also assigning the note to Isaac Cannon, the plaintiff's testate. The testimony of the defendant tended to show that the note was given for the purchase of a horse; that he did not read the note before signing it; that he did not intend to give the note to Moses Walters & Co. but Moses Walters individually; that as there were some mutual accounts between him and Moses Walters, he intended to have a settlement of these claims before paying anything on the said note; and that there was an agreement between him and Moses Walters that no money was to be paid on the said note, until they should have a final settlement of all their claims, one against the other. One Allen Smith was then introduced as a witness for the defendant, who testified about as stated above by the defendant himself. Separate exceptions were reserved to the testimony both of the defendant and the said Smith, as a whole. In rebuttal of what the defendant had testified to, the plaintiff introduced the deposition of said Moses Walters, who denied in the said deposition all the material facts as stated by the defendant. The plaintiff asked the court to give the following charge in writing, to the refusal of which the plaintiff duly excepted "If the jury believe the evidence in this case they must find for the plaintiff." The defendant asked the following charge in writing, which was given by the court "If the jury believe from the evidence that the note sued on was given for a mare, sold by Moses Walters to Levi Lindsey, and that at the time of the trade it was understood between the parties that the said sale and purchase was made to satisfy an indebtedness from Walters to Lindsey, and that the understanding was that no money was to be paid, but that the note was to await a settlement between Walters and Lindsey, and should believe that Walters was indebted to Lindsey at the time of the trade to an amount greater than the note, and that at the time of the sale the firm of M. Walters & Co. had been dissolved, then the jury must find for the defendant." To the giving of this charge the plaintiff duly excepted. The several rulings of the court, and the refusal to give the charge requested by the plaintiff, and the giving of the charge asked by the defendant, are now assigned as error.

McGuire & Collier, for appellant.

SOMERVILLE J.

1. One member of a partnership, whether existing or dissolved cannot appropriate the assets of the firm by transferring them in satisfaction of his individual debt due to such transferee, without the authority or consent of the other members of the firm. Such transaction is considered a fraud on the other partners, and the title to the joint fund or property is not divested in favor of the separate creditor, whether he knew it to be partnership property or not. "In short," as said by Judge STORY, in a leading case on this subject, "his right depends, not upon his knowledge that it was partnership property, but upon the fact whether the other partners had assented to such a disposition of it or not." Rogers v. Batchelor, 12 Pet. 221; Pars. Partn. (2d Ed.) *113, note; Id. *430; Halstead v. Shepard, 23 Ala. 558, 572; Pierce v. Pass, 1 Port. (Ala.) 232; Burwell v. Springfield, 15 Ala. 273; Nall v. McIntyre, 31 Ala. 532; Dob v. Halsey, 16 Johns. 34; Gram v. Cadwell, 5 Cow. 489; Evernghim v. Ensworth, 7 Wend. 326; Fancher v. Furnace Co., 80 Ala. 481. The case of White v. Toles, 7 Ala. 569, which seems opposed to this view, is possibly distinguishable from this case on the ground that the personal services of a partnership, not its assets, were involved in...