John Dodd Wholesale Grocery Co. v. Burt

• Decision Date: 13 October 1932
• Docket Number: 7 Div. 142.
• Citation: 143 So. 832,225 Ala. 438
• Parties: JOHN DODD WHOLESALE GROCERY CO. v. BURT.
• Court: Alabama Supreme Court

143 So. 832

225 Ala. 438

JOHN DODD WHOLESALE GROCERY CO. v. BURT.

7 Div. 142.

Supreme Court of Alabama

October 13, 1932

Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.

Action in assumpsit by the John Dodd Wholesale Grocery Company against R. A. Burt. From a judgment for defendant, plaintiff appeals.

Transferred from Court of Appeals.

Reversed and remanded.

Roy Mayhall, of Haleyville, and Thos. W. Millican, of Ft. Payne for appellant.

C. A Wolfes, of Ft. Payne, for appellee.

KNIGHT J.

Suit by plaintiff on common counts "against Burt and Croley, a partnership composed of James A. Croley and R. A. Burt." R. A. Burt filed a sworn plea in the cause, averring that he was not a partner of J. A. Croley, doing business in the name of Burt and Croley; and that no such partnership then existed. The plaintiff moved to strike this plea, and the court overruled the same. The plaintiff duly reserved an exception to this ruling of the court, and appellant's first assignment of error is based upon this action of the court.

Motion to strike, as has often been pointed out by this court, is not the proper way to test the sufficiency of a plea, but plaintiff must be put to his demurrer. Ashurst v Arnold-Henegar-Doyle Co., 201 Ala. 480, 78 So. 386; A. G. S. R. R. Co. v. Clark, 136 Ala. 450, 461, 34 So. 917; Mobile Electric Co. v. Sanges, 169 Ala. 341, 349, 53 So. 176, Ann. Cas. 1912B, 461; Owensboro Wagon Co. v. Hall, 149 Ala. 210, 43 So. 71; St. Louis & S. F. R. Co. v. Phillips, 165 Ala. 504, 51 So. 638.

While the plaintiff did later resort to demurrer to test the sufficiency of defendant's (Burt's) plea, yet the judgment entry shows no ruling thereon by the court, and therefore the sufficiency of this plea is not before us for determination.

The plaintiff amended his complaint on the day of the trial "by adding the name of R. A. Burt individually as a defendant to the action." The judgment entry also recites that the plaintiff dismissed his suit as to James A. Croley, who had died after the suit was brought. The case seems to have been treated thereafter by the parties as a suit against R. A. Burt only, as the judgment does not show anything as to the partnership; and the case is here presented as one between the plaintiff in the court below and the said R. A. Burt. We shall so regard and treat the case here.

The court, at the conclusion of the evidence, gave the general affirmative charge, with hypothesis, for the defendant, Burt, and there was verdict and judgment accordingly. From this judgment in favor of the defendant, Burt, the present appeal is prosecuted by the plaintiff.

This court has in many cases applied the rule that, where the bill of exceptions fails to affirmatively show that it contains all the evidence, any state of facts will be presumed to uphold the rulings of the trial court. Lewis Land & Lbr. Co. v. Interstate L. Co., 163 Ala. 592, 50 So. 1036; Ventress v. Town of Clayton, 165 Ala. 349, 352, 51 So. 763; Lamar v. King, 168 Ala. 285, 289, 53 So. 279; Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193, 207, 22 So. 854; Shafer v. Hausman, 139 Ala. 237, 240, 35 So. 691; Beard v. DuBose, 175 Ala. 411, 57 So. 703, 63 So. 318; Stephens v. Walker, 217 Ala. 466, 117 So. 22.

The foregoing rule, however, like other rules, has some exceptions, as was pointed out in the case of Baker v. Patterson, 171 Ala. 88, 55 So. 135, 136. In this case, this court committed itself to the proposition that, although the bill of exceptions does not purport to set out all the evidence, yet, "as long as the evidence shown by the bill of exceptions to have been offered by the parties is allowed to stand as identifying the issues of fact between the parties and constituting at least a part of the evidence upon which those issues were determined, the only effect of presuming other evidence favorable to the plaintiff will be to establish a case of conflict," and in which case the general charge would still be erroneous. And in the case of Beard v. DuBose, 175 Ala. 411, 57 So. 703, 704, 63 So. 318, which involved the propriety of giving the general charge, where the bill of exceptions did not recite that it contained all the evidence, this court again said: "Therefore, under the issue as made by the pleading, and upon which the trial was had, it matters not what facts additional to those disclosed by the bill of exceptions either party may have proved, there would necessarily be a conflict as to the real and only issue, and which would make the giving of the general charge improper." So it will be necessary to determine from the facts found in the bill of exceptions, as certified by the trial judge, whether or not there was a real conflict in the evidence, and, if it be so found, it would follow that the giving of the general charge at request of defendant, Burt, would be erroneous. We shall have occasion to further allude to this proposition of law hereafter in this opinion in considering the propriety of the court's action in giving the general charge for the defendant.

While the court, as heretofore stated, has gone quite a distance in indulging presumptions, where the bill of exceptions does not purport to set out all the evidence, to sustain the trial court, in reference to charges given or refused, it has never, so far as the writer is advised, extended the rule to cases where evidence was improperly admitted or excluded. Torrey v. Burney, 113 Ala. 496, 21 So. 348; Postal Tel. Co. v. Hulsey, 115 Ala. 193, 22 So. 854; DeLoach v. Robbins, 102 Ala. 288, 14 So. 777, 48 Am. St. Rep. 46; McDonald v. Wood, 118 Ala. 589, 24 So. 86; Bolton v. Cuthbert et al., 132 Ala. 403, 31 So. 358, 90 Am. St. Rep. 914; Sherrill v. L. & N. R. R. Co., 148 Ala. 1, 44 So. 153.

Confessedly, if the appellee, Burt, was liable in this action to the plaintiff, it would be due to the fact that he was a member of the partnership of Burt and Croley, as the evidence does not otherwise tend, in the remotest degree, to show that he himself purchased any goods of plaintiff, or personally authorized any one to make the purchases. At the time the plaintiff propounded the following questions to the witness W. M. Herren, no evidence had been offered in the case to show that the defendant, Burt, was a member of the partnership of Burt and Croley, and there was in the case a sworn plea by Burt that no such partnership existed: "Did your company sell goods and charge them to Burt and Croley?" "Is that the correct amount due on the account?" "Does that ledger sheet show the correct items bought and charged?"

If the questions were otherwise free from objection, certainly as to defendant, Burt, the proof could not be made until some evidence had been offered to show that he was a member of the partnership. And for like reasons, as well for others that might be mentioned, the court did not err in refusing to permit the plaintiff to...