Meador-Pasley Co. v. Owen, 8 Div. 280.

• Decision Date: 05 March 1931
• Docket Number: 8 Div. 280.
• Citation: 222 Ala. 392,133 So. 35
• Parties: MEADOR-PASLEY CO. v. OWEN.
• Court: Alabama Supreme Court

133 So. 35

222 Ala. 392

MEADOR-PASLEY CO. v. OWEN.

8 Div. 280.

Supreme Court of Alabama

March 5, 1931

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

Action by the Meador-Pasley Company against L. L. Owen. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals.

Affirmed.

Joe Brown, of Gadsden, for appellant.

J. A Lusk, of Guntersville, for appellee.

GARDNER J.

Counts 1 and 2 sought recovery on promissory notes executed by Benefield and Owen, and count 3 was on account for merchandise sold.

Defendant denied that he was ever a member of any partnership or that he held himself out as such at any time; contending that he ordered no goods from plaintiff, did not authorize such purchase, and is in no manner responsible for the same.

There were special pleas and demurrers interposed, but no ruling thereon appears in the judgment entry, nor, indeed, elsewhere in the record. Assignments of error 1 and 2 therefore present nothing here to be reviewed. Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Reaves v. Anniston Knitting Mills, 154 Ala. 565, 45 So. 702; General Elec. Co v. Town of Ft. Deposit, 174 Ala. 179, 56 So. 802.

Counts seeking recovery on the notes (counts 1 and 2) were eliminated by affirmative charges of the court, and no argument is here pressed there was error in such ruling.

Indeed this was the logical result of the ruling of the court excluding these notes as evidence, which action of the court constitutes the ninth assignment of error. But this ruling was upon the theory, as shown by the statement of the trial judge at the time, that the undisputed evidence disclosed that Benefield alone executed the notes after there had been a dissolution of the partnership, if in fact a partnership had ever been created, and no evidence of any authority by defendant to do so, arrangement between the parties to such effect, or ratification on his part. And the correctness of this theory does not appear to be here questioned in brief for appellant. Brown v. Bamberger, 110 Ala. 342, 20 So. 114; Fontaine v. Lee, 6 Ala. 889; 47 Corpus Juris 1131.

The cause went to the jury on plaintiff's part on count 3 on account, and under the situation above disclosed, we can see no relevant purpose these notes could have served. This assignment of error is not well taken.

By reference to page 13 of the record, as directed by the third assignment, we are unable to sufficiently determine the ruling of the court to which exception was reserved that corresponds therewith. Appellant can take nothing by such assignment. Supreme Court Rule 1, vol. 4, Code 1923, page 880; Kinnon v. L. & N. R. R. Co., 187 Ala. 480, 65 So. 397; Ogburn-Griffin Co. v. Orient Ins. Co., 188 Ala. 218, 66 So. 434.

We are unable to find the question, objection to which constitutes the fourth assignment, set out in the record, though the assignment directs an examination of two pages of the transcript (14 and 15), which has been done. We may add however, that, if the assignment has reference to the shipment of goods to Benefield and Owen, the witness testified without objection that he did know the goods were so shipped and had not been paid for.

The question, the basis of assignment No. 5, was answered by the witness, and the only exception appears to have been in regard to renewal of plaintiff's offer, but what the offer was is not made more definitely to appear.

The sixth...