Friese v. Simpson & Harper
| Decision Date | 13 February 1915 |
| Docket Number | 5645. |
| Parties | FRIESE v. SIMPSON & HARPER ET AL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
As to the several exceptions relating to alleged errors and to rulings affecting only the partnership, this case is controlled by the ruling of this court in Cary v Simpson, 15 Ga.App. 280, 82 S.E. 918.
An admission which, by shifting the burden of proof, will entitle the party making it to the opening and conclusion of the argument, must be such a direct and unequivocal admission of the contention of the opposite party as to the material facts at issue as dispenses with the necessity for proof of those facts, and such an admission as, without more, would require a verdict in favor of the party upon whom the burden of proof originally rested. An admission of the correctness of an account upon which a suit against a partnership is brought, made by one of the individuals alleged to be a partner, but who denies that he is a partner, is ineffectual to include the issue raised by the plea of nonpartnership filed by the party making the admission.
When a case proceeds to trial, and exception to the verdict is thereafter taken upon the ground that it is contrary to evidence, a consideration of the merits of the court's ruling upon a motion for nonsuit is merged into the assignment of error complaining that the evidence was insufficient to authorize the finding reached.
(a) While agency cannot be proved by mere unsworn declarations of one assuming to be an agent, there is nothing in the law that renders the alleged agent himself an incompetent witness to testify to the fact that the relationship exists. One who is in fact the agent of another is just as competent a witness on the subject as the principal himself would be.
(b) When notice of a fact is communicated to a general agent, or to a special agent in absolute charge of a particular business, knowledge of all the facts suggested by the notice is imputable to the principal.
In a suit against a partnership and the individuals alleged to compose it, evidence affecting one or more of the partners though not applicable to another partner, is not for that reason to be excluded from the jury's consideration upon the case as a whole. Especially can there be no ground of complaint when the court instructs the jury not to consider telegrams or letters alleged to have been sent by one of the alleged partners, as affecting the other partner.
Under the ruling in Armour v. Ross, 110 Ga. 414, 35 S.E 787, the evidence as to agency was competent, and supports the conclusion that the plaintiff in error was a partner in the alleged firm, and therefore there was no error in the instructions of the court to which exceptions are taken.
Error from City Court of Sparta; R. W. Moore, Judge.
Action by Simpson & Harper and others against Mrs. John Friese. Judgment for plaintiffs, and defendant brings error. Affirmed.
Lewis & Culver, of Sparta, for plaintiff in error.
Burwell & Fleming and J. W. Lewis, all of Sparta, for defendants in error.
The present writ of error concerns the complaints of another defendant in a case heretofore before this court. See Cary v. Simpson, 15 Ga.App. 280, 82 S.E. 918. The suit proceeded against the Friese Planing Mill Company under allegations that the Friese Planing Mill Company was a partnership, composed of C. S. Cary and Mrs. Friese.
1. Each of the alleged partners filed pleas of nonpartnership, and inasmuch as in Cary's Case, supra, we dealt with all of the cognate exceptions which were applicable solely to the partnership, the decision in the present case is controlled by the ruling in that case as to all the points raised in the present bill of exceptions, except those assignments based upon rulings upon the testimony, the portions of the charge relating to the applicability of the evidence to the subject of Mrs. Friese's liability, and the general exception that the evidence did not authorize a finding that Mrs. Friese was a partner. Therefore the only real question raised by the present record is as to the validity of the complaints urged in support of the contention that Mrs. Friese was not a partner in the Friese Planing Mill Company, and, as ancillary to that exception, an assignment that the court erred in refusing a nonsuit, and a complaint that the present plaintiff in error was wrongly deprived of the opening and conclusion of the argument.
2. There is no merit in the contention that the present plaintiff in error was entitled to the opening and conclusion of the argument, for the gist of her defense was that she was not a partner. It certainly cannot be contended that she admitted she was a partner, and the rule is well settled that for the admission of a party to shift the burden of proof, so as to entitle him to the opening and conclusion of the argument, it must be such a direct and unequivocal admission as to dispense with proof on the part of the opposite party and entitle him to a verdict in the absence of proof sufficient to avoid the...
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