Dicks v. McAllister

• Citation: 20 Ala.App. 5,100 So. 631
• Decision Date: 19 February 1924
• Docket Number: 2 Div. 270.
• Parties: DICKS v. MCALLISTER.
• Court: Alabama Court of Appeals

100 So. 631

20 Ala.App. 5

DICKS v. MCALLISTER.

2 Div. 270.

Court of Appeals of Alabama

February 19, 1924

Rehearing Denied April 8, 1924.

Appeal from Circuit Court, Choctaw County; Ben D. Turner, Judge.

Action in detinue by Charles McAllister against L. E. Loftis and Reubin Dicks. From a judgment for plaintiff, defendant Dicks appeals. Affirmed.

R Percy Roach, of Mobile, for appellant.

Gray & Dansby, of Butler, and John S. Tilley, of Montgomery, for appellee.

FOSTER J.

Charles McAllister brought suit in detinue in the circuit court of Choctaw county for 108,000 feet of lumber, and Reubin Dicks defended as bailee for J. T. F. Hairston. There was a trial before the court without a jury, and judgment was rendered in favor of the plaintiff for the lumber, or its alternate value of $485. From this judgment the defendant appeals to this court.

The facts in this case are substantially as follows: J. T. F Hairston and L. E. Loftis were interested together in cutting timber near Mt. Sterling, in Choctaw county, Ala., under an agreement by which Hairston was to furnish the stumpage Loftis to furnish the teams and sawmill and to haul the logs to the mill and manufacture the same into lumber. The mill was about five miles from the Tombigee river, and Hairston was to pay $2 per thousand for hauling the lumber to the river. The balance of all expenses were to be borne equally between the parties, and they agreed to share the profits equally, though nothing was said about sharing losses. Another term of the contract was that Hairston was to furnish money to handle pay rolls. The plaintiff testified that Hairston on one occasion told him he appreciated the way he treated his partner (Loftis). The business was done under the name of the "Wahalak Lumber Company." The business progressed under the terms of this agreement for a time, but Hairston finally refused to furnish additional money for pay rolls, and there was evidence that he instructed Loftis to get the money where he could. Loftis then procured the money to handle certain pay rolls from the plaintiff and executed to him a bill of sale for the 108,000 feet of lumber in controversy, which lumber was stacked in the millyard and pointed out by Loftis to McAllister and constructive delivery made to him. Thereafter Reubin Dicks, the defendant, acting for Hairston, moved the lumber after having been warned by McAllister, and plaintiff then levied upon the same by a writ of detinue September 13, 1919; the property thereafter being replevied by Reubin Dicks.

Counsel for both plaintiff and defendant discuss at length the question of whether the facts of this case show that there was a partnership between Loftis and Hairston as a result of their agreement. But we think it is immaterial under the facts of this case whether or not the agreement between Loftis and Hairston constituted them partners inter sese. Whether they were partners inter sese must be determined by their intention as expressed in or may be gathered from the agreement between them and the circumstances attending its execution. Brooke v. Tucker, 149 Ala. 96, 43 So. 141; Couch v. Woodruff, 63 Ala. 466; Bestor v. Barker, 106 Ala. 240, 17 So. 389.

When the rights of third persons, who have dealt with parties associated in business, are involved, a partnership may arise by operation of law without an inquiry into, or in direct opposition to, the expressed intention of the parties. This is technically called a partnership by "estoppel." Couch v. Woodruff, 63 Ala. 466.

It is a well-accepted principle of the common law that when persons hold themselves out as partners, and thereby induce others to deal with them in that capacity, it is no defense that no partnership as a matter of...