Dorough v. G. M. Harrington & Son

• Decision Date: 15 November 1906
• Citation: 42 So. 557,148 Ala. 305
• Parties: DOROUGH v. G. M. HARRINGTON & SON.
• Court: Alabama Supreme Court

42 So. 557

148 Ala. 305

DOROUGH v. G. M. HARRINGTON & SON.

Supreme Court of Alabama

November 15, 1906

Appeal from Circuit Court, Elmore County; S. L. Brewer, Judge.

"To be officially reported."

Action by G. M. Harrington & Son against J. W. Dorough. From a judgment for plaintiffs, defendant appeals. Affirmed.

Three pleas were interposed by the defendant: (1) A sworn plea denying the existence of such a firm as G. M. Harrington &amp Son; (2) the general issue; and (3) that the contract upon which the suit was founded was made with G. M. Harrington as an individual, and not as a member of the firm of G. M Harrington & Son. The facts concerning the articles of partnership sufficiently appear from the opinion. It was shown, over the objection of defendant, that some time in February Dr. Dorough was at the place where Harrington & Son were doing business. He was down there on a hunt, and was told about some corn on hand, and he said he thought he could "handle a car load of corn for us," and G. M Harrington told him that "if he could handle, and be responsible, and make it straight and all right, we wanted to dispose of some corn, and that, if he could get us the market price, we would like to sell some; and he told us he would go down, when he went back home, and see what he could do, and about a week afterwards he wrote us." The other facts sufficiently appear from the opinion.

The defendant requested the following charges, which were refused by the court: "(2) I charge you, gentlemen of the jury that the burden of proof is upon the plaintiff to show you by the evidence that the contract upon which this suit was founded was made with G. M. Harrington & Son. (3) I charge you, gentlemen of the jury, that the burden of proof is upon the plaintiff to show you that the corn was sold to Dr. Dorough by G. M. Harrington & Son. (4) I charge you, gentlemen of the jury, that there is no evidence in this case to show that the corn was shipped by G. M. Harrington & Son that was brought home to the knowledge of defendant. (5) I charge you, gentlemen of the jury, that the contract upon which this contract was based was merged into the written letters of G. M. Harrington to Dr. John Dorough, of date March 27, 1905, and the letter of Dorough to Harrington, dated March 29, 1905; and you may look to these letters to determine with whom the contract was made."

There was motion for new trial, based upon the refusal of the court to give these charges, upon the fact that the verdict was contrary to the charge of the court and to the evidence, and upon the fact that the verdict was excessive. The bill of exceptions does not show the rulings on the motion, nor an exception reserved thereto.

E. S. Thigpen, for appellant.

Holley & McMorris, for appellees.

WEAKLEY C.J.

The action was brought by "G. M. Harrington & Son, a firm composed of G. M. Harrington and A. C. Harrington, plaintiffs," upon the common counts. The defendant filed three pleas, upon which issue was joined. The first was a sworn plea, which averred: "There is no such firm as G. M. Harrington & Son, and that G. M. Harrington and A. C. Harrington do not compose the firm of G. M. Harrington & Son." The second was a plea of not indebted; and the third averred "that the contract upon which the suit was founded was made with G. M. Harrington as an individual, and not with G. M. Harrington as a member of the firm of G. M. Harrington & Son." The claim asserted by the plaintiffs against the defendant grew out of the shipment of a car of corn, which they asserted was forwarded under a contract with the firm, while the defendant contended the transaction was one between him and G. M. Harrington as an individual. There was also controversy between the parties as to whether, in any event, the defendant was liable for the price of all the corn contained in the car which was consigned to him, or whether his liability extended no further than the amount of the collections he actually made from other parties for certain quantities of the corn which defendant caused to be delivered to them. The defendant further contended that, if a partnership existed between the two parties named as plaintiffs, the style of the firm was not that alleged, but was Harrington & Son. The assignments of error relate to rulings on evidence, the refusal of charges requested in writing by the defendant, who is appellant here, and to the refusal of the court to grant him a new trial.

We proceed to consider such of the objections to evidence as seem worthy of discussion. There was no error in admitting in evidence the written articles of copartnership between the plaintiffs, and in allowing them to show when the articles were executed. The writing disclosed an agreement for the transaction of a lawful business, according to the terms of which there was to be a community of profit and loss between the contracting parties, each sharing in these mutually as associates in the undertaking; and hence the formation of a partnership was thereby shown. McCrary v. Slaughter, 58 Ala. 230; Goldsmith v. Eichold, 94 Ala. 116, 10 So. 80, 33 Am. St. Rep. 97. It is true the articles gave the name of the partnership as Harrington & Son, but it was competent to offer...