Hatcher v. Branch, Powell & Co.

• Decision Date: 01 December 1904
• Parties: HATCHER v. BRANCH, POWELL & CO.
• Court: Alabama Supreme Court

37 So. 690

141 Ala. 410

HATCHER v. BRANCH, POWELL & CO.

Supreme Court of Alabama

December 1, 1904

Appeal from Circuit Court, Montgomery County; John G. Winter, Judge.

Action by E. C. Branch and others, a copartnership trading under the name of Branch, Powell & Co., against N. P. Hatcher. From a judgment for plaintiff, defendant appeals. Affirmed.

In the complaint the plaintiff was described as follows "Branch, Powell & Co., a copartnership, composed of E C. Branch, B. P. Powell, and R. H. Powell." The defendant demurred to the complaint upon the ground that it shows on its face that it is an action by a partnership, and there is no authority in law for a partnership, as such, to bring an action at law. This demurrer was overruled. Thereupon the defendant pleaded the general issue, and the following special plea: "(2) That before this suit was brought he notified the plaintiffs that he demanded a cancellation of the insurance policy for which the notes sued on were given, and notified plaintiffs that he would not further abide by said policy of insurance. That this was done in January or February in the present year. That, before this suit was brought, defendant returned to plaintiffs the said policy of insurance, which was the sole consideration of said note sued on, and that plaintiffs accepted the same. Wherefore defendant saith that the consideration of said notes have failed, and that he is not indebted to plaintiff in the manner and form set forth in said complaint." The plaintiff demurred to this special plea upon several grounds and the demurrer was sustained.

Charles P. Jones, for appellant.

Thomas W. Martin, for appellee.

DOWDELL J.

While the suit appears to have been brought in the name of the partnership as plaintiff, still the individual names of the partners composing the firm were set out in the complaint. On the authority of Foreman v. Weil & Bros., 98 Ala 496, 12 So. 815, the trial court properly overruled the demurrer to the complaint, on the ground that the suit was brought in the name of the partnership. The case of Simmons v. Titche, 102 Ala. 317, 14 So. 786, cited by counsel for appellant, is unlike the case at bar, and that of Foreman v. Weil Bros., supra, in that, in the former case, the suit was brought in the firm name, and the names of the individuals composing the partnership nowhere appeared. There were other grounds of demurrer to the complaint, but the same are not insisted on in argument; moreover, we fail to see any merit in them.

The second assignment of error is that the court erred in sustaining the plaintiff's demurrer to the second plea. There were a number of grounds of demurrer assigned, but it is unnecessary to notice all, since, if any one was good, the demurrer was properly sustained.

The contract of insurance for which the plea alleges the notes were given is not set out in the record. It is not alleged that the notes were given for the premium on the policy, but for the policy of insurance. The plea does not show that the plaintiff agreed to the cancellation of the policy of insurance, nor does it show that the defendant had a right to demand...