Mizell v. Sylacauga Grocery Co.

• Decision Date: 27 November 1925
• Docket Number: 5 Div. 918
• Citation: 106 So. 858,214 Ala. 204
• Parties: MIZELL v. SYLACAUGA GROCERY CO.
• Court: Alabama Supreme Court

106 So. 858

214 Ala. 204

MIZELL v. SYLACAUGA GROCERY CO.

5 Div. 918

Supreme Court of Alabama

November 27, 1925

Rehearing Denied Jan. 21, 1926

Appeal from Circuit Court, Coosa County; E.S. Lyman, Judge.

Action on the common counts by the Sylacauga Grocery Company against C.W. Mizell and A.M. Carter, doing business as the Coosa County Turpentine Company. From a judgment for plaintiff defendant Mizell appeals. Affirmed.

Refusal of requested charges not error where fully covered by oral charges.

These charges were given at plaintiff's request:

(4) "The court charges the jury that, even though you may not believe from the evidence that defendant, Mizell, was a member of the firm of the Coosa County Turpentine Company at the time the plaintiff's claim against it was created yet the defendant, Mizell, is liable on the claim sued on if you are reasonably satisfied from the evidence in the case that defendant, Mizell, knowingly permitted himself to be held out as a partner in said firm, and that plaintiff in extending credit to said firm relied on such conduct and believed defendant, Mizell, to be a partner in said firm." (5) "The court charges the jury that when persons hold themselves out as partners and thereby induce others to deal with them in that capacity, it is no defense that no partnership, as a matter of fact, existed, and one whose previous declarations or conduct have amounted to a representation that another was his partner will be liable as such for the acts of the other within the scope of the firm's business, though not consulted and without knowledge of the transaction, if one relying on the truth of such representations has been misled thereby to his prejudice."

The following are charges refused to defendant:

(2) "The court charges the jury that the act of Carter in recording, or having the excerpt of the agreement of August 30th, 1919, recorded, is not in law a holding out of Mizell as a partner of Coosa County Turpentine Company."

(6) "The court charges the jury that there was in this case no duty on defendant, Mizell, to notify plaintiff that he was not a member of the firm of Coosa County Turpentine Company, unless defendant knew that plaintiff was about to extend credit to said company in the belief on plaintiff's part that defendant was a member of said firm or company."

(9) "If the jury find from the evidence that the partnership of Coosa County Turpentine Company, composed of Douglas, Mizell, and Carter, was dissolved by the withdrawal of Douglas and Mizell, then the defendant, Mizell, is not liable to the plaintiff in this case unless he held himself out to the plaintiff as a partner, or knowingly permitted himself to be held out to the plaintiff as a partner, at the time plaintiff extended the credit in question to said company."

(11) "The court charges the jury that unless they find from the evidence that Mizell or Carter, at the instance of Mizell, or with his knowledge, or acquiescence, directed the plaintiff or its officer to the record of the excerpt from the agreement of August 30, 1919, then the defendant, Mizell, is not bound by the act of the plaintiff or its officer in going to and reading said record."

(13) "The court charges the jury that, under the evidence in this case, the Coosa County Turpentine Company was a noncommercial concern, and that in such a concern one partner has no implied authority to bind the other partners by purchases of such goods on credit as flour, meal, feedstuff, coffee or sugar, or heavy groceries."

(14) "The court charges the jury that the burden of proof is on the plaintiff to show to their reasonable satisfaction by the proof that the goods sold by the plaintiff to Coosa County Turpentine Company were such as are customarily used in the conduct or operation of a turpentine business."

H.A. Teel, of Rockford, W.W. Sanders, of Elba, and W.O. Mulkey, of Geneva, for appellant.

Felix L. Smith, of Rockford, and Holley & Milner, of Wetumpka, for appellee.

THOMAS J.

The suit is on common counts against defendants as parties doing business under a firm name and style. Defendants pleaded the general issue and that denying the partnership existence.

The liability of partners for the contracts of the partnership and that imposed on one held out as a partner was the subject of extended discussion in Eggleston v. Wilson, 211 Ala. 140, 100 So. 89. These recognized rules need not now be repeated. It is declared that in actions by strangers against partners or for the liability imposed on a partner, that same strictness of proof is not required to establish the relationship or liability as is required in suits between partners inter se, where the fact of the relationship must be proved. Cain Lumber Co. v. Standard Dry Kiln Co., 108 Ala. 349, 18 So. 882; Paterson v. Mobile S. Co., 202 Ala. 471, 80 So. 855. When the fact of the existence of the partnership has been otherwise established, the declarations of the partners, within the scope of the business, though not made in the presence of the other, are competent evidence. Eggleston v. Wilson, 211 Ala. 140, 100 So. 89; Conner v. Ray, 195 Ala. 170, 70 So. 130; Clark v. Taylor, 68 Ala. 453; Alabama Fertilizer Co. v. Reynolds & Lee, 85 Ala. 22, 4 So. 639; Id., 79 Ala. 501; Humes v. O'Bryan, 74 Ala. 64; Dicks v. McAllister, 20 Ala.App. 5, 100 So. 631.

There was no error in permitting Carter's statements to plaintiff's witness, Golson, as to who composed the partnership--that Mizell was interested and a partner. The excerpt of the partnership agreement of the company recorded in the county of Coosa was furnished Carter by Mizell, and was recorded at his request or with his permission; the same was known to Golson at the time of and prior to the extending of the credit for which suit is brought. There are further tendencies of evidence to the effect that Carter stated to Golson that appellant was a partner; that appellant, having been sued as partner in another case, settled the same before trial was concluded by verdict; the failure of appellant to deny that he gave permission to Carter to have the excerpt of the contract showing the partnership relations recorded in the county and community where the credit was extended; and that appellant told Golson that said Turpentine Company had to have credit for merchandise, and he thought same would be paid. The foregoing made a jury question as to imposed liability as a partner and indicates there was no error in admitting the evidence in question. Contradictory tendencies of evidence are for the jury. Affirmative charges requested were properly refused under the special plea denying liability for the debts and obligations of that company. Jones v. Bell, 201 Ala. 336, 77 So. 998; McMillan v. Aiken, 205 Ala. 35, 88 So. 135.

The case was given to the...