J. R. Kilgore & Son v. Shannon & Co.

• Decision Date: 19 November 1912
• Citation: 6 Ala.App. 537,60 So. 520
• Parties: J. R. KILGORE & SON v. SHANNON & CO.
• Court: Alabama Court of Appeals

60 So. 520

6 Ala.App. 537

J. R. KILGORE & SON v. SHANNON & CO.

Court of Appeals of Alabama

November 19, 1912

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Action by Shannon & Co. against J. R. Kilgore & Son for conversion. Judgment for plaintiff, and defendant appeals. Affirmed.

The summons was as follows: "You are hereby commanded to summons J. R. Kilgore & Son, a partnership composed of J. R Kilgore and John Kilgore, to appear before the Walker county law and equity court, to be held for said county at the place of holding the same, then and there to answer, plead, or demur, within 30 days after the service of this process, to the complaint of Shannon & Co., composed of J. S Shannon." The complaint is: "Shannon & Co. composed of J. S. Shannon, Plaintiff, against J. R. Kilgore & Son, a Partnership Composed of J. R. Kilgore and John Kilgore. Plaintiff claims of the defendant $200 damages for the conversion by the defendant on, to wit, the 15th day of September, 1901, of the following chattels, to wit: One yoke muley steers; one yoke white and brindle steers, known as the Shannon steers; and one cow, the property of the plaintiff."

Bankhead & Bankhead, of Jasper, for appellant.

M. B. McCullom, W. C. Davis, and J. J. Ray, all of Jasper, for appellee.

PER CURIAM.

This suit was brought by the appellee against the appellant for damages for the conversion of certain steers, the property of the appellee. It appears from the evidence that one Sims gave a mortgage to the appellee upon the property described in the complaint, that the defendant is a partnership composed of J R. Kilgore, frequently referred to in the testimony as "Bob" Kilgore, and John Kilgore; and that Bob Kilgore was the father of John Kilgore. It further appears from the evidence without dispute that Bob Kilgore was seen in possession of the steers described in the complaint after the above mortgage was executed, and that he shipped them out of Walker county, where the mortgage was recorded and where Sims resided, and that they were sold by him. The theory of the appellee is that Sims, who made him the mortgage on the cattle, sold the cattle to appellant, and that appellant sold them and retained the proceeds. The theory of appellant is that appellee took possession of the steers under the mortgage, and that Bob Kilgore, one of the members of the firm of J. R. Kilgore & Son, bought the cattle from appellee. On the subject as to whether Bob Kilgore bought the cattle from appellee the evidence is in sharp dispute. The appellee swore positively that he did not sell the animals to Bob Kilgore. On the other hand, Bob Kilgore swore positively that he bought the animals from the appellee, and on this subject he was corroborated by the mortgagor, Sims. There was evidence in the case, however, tending to impeach the witness Sims.

1. The summons and the complaint in this case are both short, and the reporter will set them out in his summary of the facts.

2. A casual inspection of the complaint will indicate that the appellee (plaintiff in the court below) brought this suit against the partnership of J. R. Kilgore & Son (the defendant in the court below), and not against J. R. Kilgore and John Kilgore, the individuals composing the partnership. The complaint in the instant case is more plainly a declaration against the partnership only than was the case in Williams et al. v. Hurley et al., 135 Ala. 319, 33 So. 159. In that case the Supreme Court, through McClellan, C.J., said: "The complaint counts against the partnership alone, and not against the individuals composing the partnership. The statement of the members of the firm is mere description of the personnel of the entity which alone is sued." To the same effect is the case of Baldridge v. Eason, 99 Ala. 516, 13 So. 74.

3. As this suit was brought by appellee against the appellant, a partnership, for damages for an alleged conversion by the appellant of personal property of the appellee, as a condition precedent to a right to recover in the action, the law cast the burden upon the appellee of introducing evidence sufficient to reasonably satisfy the jury that appellant--the partnership of J. R. Kilgore & Son--converted the property described in the complaint. Evidence merely establishing the conversion of the property by a person who at the time of the conversion was a member of the partnership was not alone sufficient to bind the partnership and to authorize a recovery by appellee against appellant. The mere fact that a man who is a member of a partnership commits a tort is not alone sufficient to justify the conclusion that the partnership of which he is a member is also guilty of the tort. The general rule is that a partnership is liable for the tort of one of its members only when the tort is committed by such member when acting within the scope and prosecution of the partnership business. Williams v. Hendricks, 115 Ala. 282, 22 So. 439, 41 L. R. A. 650, 67 Am. St. Rep. 32; Myers v. Gilbert, 18 Ala. 467.

4. There was undoubtedly evidence in this case tending to show that J. R. Kilgore, one of the members of the partnership, converted the property described in the complaint. One of the principal questions presented by this record is whether there was any evidence tending to show that the conversion by Bob Kilgore was a conversion committed by him while acting within the scope and prosecution of the partnership business. The appellee is evidently a merchant who did business as such at the time of the alleged conversion at Carbon Hill, which is a town in Walker county, and he testified that he was engaged in the business of buying, selling, and dealing in cattle in that county. It is evident from the bill of exceptions that the firm of J. R. Kilgore & Son also did business in the neighborhood of that town at the time referred to, and that the members of that firm were known to the appellee. In other words, the parties to this litigation were not residents of a large city, but were residents of a county in which there is no large city, and they evidently knew each other, and the jury were authorized to infer from their situation with reference to each other that the appellee and the members of the firm of Kilgore & Son were probably acquainted with the general scope and character of each other's business. While the appellee in his testimony details a conversation which he had with Bob Kilgore, and states that Bob Kilgore in said conversation stated that he bought the cattle from Sims, and nowhere states that Bob Kilgore stated that the cattle were bought for J. R. Kilgore & Son, nevertheless the appellee also states in his testimony: " It is my understanding that the defendant got these steers." The word "defendant" used by the witness in the sentence which we have just quoted and italicized refers, not to Bob Kilgore, but to the firm of Kilgore & Son, the defendant in the court below.

In the case of Dearing, Sink & Co. v. Smith & Wright, 4 Ala. 432, the plaintiff's counsel testified that "he had always understood that Dearing, Sink & Co. were partners, but did not know whether there had been a dissolution of the firm. Mr. Dearing, he had understood, was a partner." In that case the Supreme Court said: "It is, however, argued that the witness does not testify of his own knowledge that James H. Dearing was a partner of the house of Dearing, Sink & Co., but merely from general reputation or rumor. We do not so regard his evidence. He says, 'He had understood,' etc. Now 'understood' is the preterit of 'understand,' a verb of very extensive signification, and which, among other things, means to learn, or to be informed. When the witness says, in effect, that he has learned or been informed that Mr. Dearing was a member of the firm, it cannot with propriety be assumed that his information was derived from rumor, but a jury might well infer that he had learned it from an authentic and satisfactory source, even from the party himself; and, upon the authority of the cases cited, the court would be bound so to intend." While there is no direct statement of any witness in this case that the partnership of Kilgore & Son was engaged in buying and selling cattle, nevertheless as appellee evidently knew the members of the partnership, and as it is a matter of common knowledge that people who reside in rural communities and small towns usually know, not from mere rumor, but from authentic information, derived from constant association, who are the members of the various partnerships domiciled and doing business in such towns and communities, and what the scope of such business partnerships is, we are of the opinion that the statement of appellee in his testimony that he understood that J. R. Kilgore & Son got the steers in controversy amounted not simply to the opinion of the witness or to mere hearsay, but to some evidence of that fact. Of course, if that is true, it was for the jury to say what weight should be given to this testimony. C. of G. Ry. Co. v. Dothan Mule Co., 159 Ala. 225, 49 So. 243; 6 Mayfield's Dig. p. 340, § 107.

In addition to the above, the evidence for the defendant tends to show that at or about the time of the alleged conversion of the steers, and at or about the time Bob Kilgore was admittedly in possession of the steers, some cattle were bought, as the witness Bob Kilgore testified, by Bob Kilgore from Sims. The evidence of Bob Kilgore tends to show that the cattle so bought from Sims did not include the steers in controversy, but it is evident, from all of the testimony of the defendant, that Sims sold either to Bob Kilgore or to the defendant a lot of cattle at or about the time of the alleged conversion, and that at the time of such sale Sims, Rollins and...