Eggleston v. Wilson

• Decision Date: 17 April 1924
• Docket Number: 7 Div. 462.
• Citation: 100 So. 89,211 Ala. 140
• Parties: EGGLESTON v. WILSON ET AL.
• Court: Alabama Supreme Court

100 So. 89

211 Ala. 140

EGGLESTON v. WILSON ET AL.

7 Div. 462.

Supreme Court of Alabama

April 17, 1924

Appeal from Circuit Court, Clay County; George F. Smoot, Judge.

Action on common counts by R. H. Eggleston, as trustee in bankruptcy of the Southern Tire & Accessories Company, against E. W Wilson, individually, and as a member of the firm of Day &amp Night Auto Repair Company. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Walter S. Smith, of Lineville, for appellant.

A. L Crumpton, of Roanoke, for appellees.

THOMAS J.

This is the second appeal. Eggleston v. Wilson, 208 Ala. 167, 94 So. 108.

The suit was on account, account stated, etc. It was alleged by way of replication to defendant's pleas that defendant Wilson held himself out to plaintiff as a partner in the business conducted in the name of Day & Night Auto Repair Company, the purchaser of the merchandise in question, and on said representation plaintiff relied in making sales thereof.

The issues of fact are somewhat similar to those on which the trials were had in Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216, and Tennessee Valley Bank v. Valley View Farm (Ala. Sup.) 97 So. 62. Defendant Wilson did not dispute the fact that plaintiff sold the goods in amounts and values claimed to the Day & Night Auto Repair Company, admitted that "there was no contest as to the indebtedness" of the Auto Repair Company to plaintiff, and that the amount due at the time was $966.21.

The evidence being in conflict on the questions (1) whether or not Wilson was a member of said partnership, and (2) whether or not he held himself out in such wise as to subject him to a partnership liability, they are jury questions. Affirmative charges requested by plaintiff were properly refused. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

Refused charges 6 and 7 should have been given. However, they were covered by instructions contained in the oral charge. So, also, were refused charges 11 and 13. Charge 16, requested by plaintiff, was properly refused. It was an invasion of the province of the jury. There was a tendency of evidence to the effect that Wilson was not a debtor of plaintiff, or a member of the partnership, and the charge sought to fasten liability upon him as a matter of law, merely because plaintiff mailed to him a statement of account which was not thereafter returned, or no objection made within a reasonable time. Such action on Wilson's part, if he received the statement, might be considered by the jury, with the other evidence, in determining whether he was indebted to plaintiff or liable as upon a partnership debt. It was within the province of the jury to decide whether such statements were received by Wilson, and, if so, whether his silence was a sufficient admission of his dereliction or liability to plaintiff, when considered with the other evidence, on which to return a verdict against him.

Plaintiff's refused charge 10 was not abstract. The account on which suit was brought was contracted in October and November, 1919, after plaintiff's salesman visited the place of business of the partnership. That salesman testified that during the month of October, and before the sales were made to the Day & Night Auto Company, he saw C. R. Vann, and the latter represented to him that E. W. Wilson, the defendant, was his partner, doing business under said firm name, and that fact was confirmed by Wilson. The witness said that he "went to see Mr. E. W. Wilson about credits on this goods. He told me that he was to put up all the money and Vann was to be the mechanic and run the place"; and that Wilson would pay for goods purchased by Vann, and further stated or admitted that he was a partner in the business. These inferences of fact may be found in defendant's answers to interrogatories propounded under the statute and offered in evidence; that he (Wilson) was to furnish Vann the "necessary money," and the latter had agreed to pay Wilson one-half of the amount he (Vann) took in until he paid $1,000. In the refusal of plaintiff's charge 10 reversible error was committed, as it was not fully covered in the oral charge.

As has been indicated, a jury question was presented by the conflicting tendencies of evidence-that tending to show plaintiff duly addressed and mailed a statement of the account on which the suit is brought and wrote letters to defendant Wilson requesting payment of the indebtedness, and no reply was made by defendant; that for defendant to the effect that the same were not duly addressed to him or received, and that he did not get any mail from the office or mail route shown to have been employed by plaintiff for foregoing communications to defendant. Hence charges 3, 9, and 15, requested by plaintiff, were properly refused.

It was indicated on former appeal that the judgment rendered in justice court in attachment, culminating in personal liability, was properly excluded when offered as evidence in the circuit court; no service of the summons was shown by the return to have been made upon the defendant Wilson. The court properly refused to allow A. C. Ford, to testify that he served the process on Wilson, since this was, in effect, a contradiction of his return or failure thereof shown by the process.

After the demand for production of correspondence between plaintiff and defendant, and refusal or failure to produce, secondary evidence was permissible of the contents of said documents that were material. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216. In the opinion rendered on first appeal it is pointed out that the activities of defendant Wilson as to renting and actual possession of the property at and before the attachment, the payment of partnership debts, etc., were competent as evidence. The witness Bell should have been permitted to testify that Wilson authorized him to pay other debts of the partnership. Such evidence tended to shed light on the relations of Wilson and Vann as to the business conducted under the firm name.

Plaintiff sought to show that by "common repute" or "common report" defendant was regarded as a member of the partnership, In this connection it is pertinent to inquire if defendant's given charges 1 and 3 unduly limited the plaintiff in the nature and degree of proof he might offer under the two issues of fact being tried.

The cases in this jurisdiction declare in general terms (1) that if an actual partnership exists, that fact is sufficient to charge its members with a partnership liability, without regard to what may have been the reputation or common report in that community as to whether or not a designated person was a partner therein; and (2) that, where it is sought to impose a partnership liability by way of an estoppel, the party sought to be subjected to such liability (A) must have "held himself out as a partner," and (B) he who seeks to so hold that other liable for holding himself out as a partner must have dealt with the partnership upon the faith of such other person being a member thereof. It follows that "common reputation" is not admissible to establish the existence of a partnership between individuals. Carter, Hogan & Plowman v. Douglass, 2 Ala. 499, Clark v. Taylor, 68 Ala. 453, and Humes v. O'Bryan & Washington, 74 Ala. 64, 81, were actions against an alleged partnership on account. 30 Cyc. 407. Cont. R. & B. Co. v. Smith, 76 Ala. 572, 52 Am. Rep. 353, was an action against an alleged partnership for negligence in operating a boat; Knard v. Hill, 102 Ala. 570, 574, 15 So. 345, an action for damages against individuals alleged to have been members of the partnership charged with negligence; Weil Bros. v. Hanks, 201 Ala. 39, 77 So. 333, an action for damages for breach of contract by an alleged partnership in the sale of cotton. In Lewis v. Post & Main, 1 Ala. 74, Marble & Son v. Lypes & Co., 82 Ala. 322, 2 So. 701, and Tanner & De Laney Eng. Co. v. Hall, 86 Ala. 305, 5 So. 584, holdings were that the evidence was inadmissible against one sued as a partner which he has denied that fact, etc. The same announcement of the rule of evidence is contained in First Nat. Bank v. Leland, 122 Ala. 289, 296, 25 So. 195 (action on bill of exchange, and the pleas were of coverture); St. Louis, etc., Co. v. McPeters, 124 Ala. 451, 27 So. 518 (action on account against an alleged surviving member of a partnership, and the plea was set-off); Owensboro Wagon Co. v. Bliss, 132 Ala. 253, 260, 31 So. 81, 90 Am. St. Rep. 907 (common counts against alleged partners and pleas denied the existence of the partnership and sought to set up a corporate existence, or de facto corporate operation thereof). These three cases last cited are said to contain dicta on this rule of evidence. It is unnecessary to decide whether the same was dicta. 30 Cyc. 407; L. R. A. 1918D, 505, 506. In Guin v. Grasselli Chem. Co., 197 Ala. 117, 72 So. 413 (suit in assumpsit, and plea of non est factum), it is declared that "the...