Paterson v. Mobile Steel Co.

• Decision Date: 23 January 1919
• Docket Number: 1 Div. 62
• Citation: 80 So. 855,202 Ala. 471
• Parties: PATERSON v. MOBILE STEEL CO.
• Court: Alabama Supreme Court

80 So. 855

202 Ala. 471

PATERSON v. MOBILE STEEL CO.

1 Div. 62

Supreme Court of Alabama

January 23, 1919

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Assumpsit by the Mobile Steel Company against the Bay City Roofing &amp Sheet Metal Works and W.B. Paterson and W.J. Nelson, partners composing the above firm. Judgment for plaintiff, and the defendant W.B. Paterson appeals. Affirmed.

The plea sufficiently appears. The following are the replications referred to in the opinion:

A1, as amended:

"Plaintiff says that defendant W.B. Paterson is estopped from denying his liability as a partner in this suit because he held himself out, or permitted himself to be held out, as a partner in the following manner: The Bay City Roofing &amp Sheet Metal Works was organized by said defendant Paterson W.J. Nelson, and Albert Max, as an unincorporated concern for the purpose of engaging in business under that trade name at Mobile, Ala., and did so engage in business at said place, and while so engaged in its business the defendant Paterson participated in its business affairs, and, jointly with the defendant W.J. Nelson, controlled its funds. The said defendant Paterson has previously to organization of said concern been engaged in business with the said defendant Nelson as partners, and, after the organization of the Bay City Roofing & Sheet Metal Company, the individual names of said Paterson and Nelson and Max appeared on the business stationery of said concern, and the defendant Paterson had notice of these facts at the time the goods herein sued for were sold; and plaintiff alleges that its authorized representative, who for it and in its behalf extended the credit for which this suit is brought, knew the facts as hereinabove set forth at said time, and sold the goods which plaintiff alleges were to be used in said business at the express request of said Paterson, reasonably believing from said facts and such request that he was a partner in said Bay City Roofing & Sheet Metal Works, and the credit was extended because of said belief."

Replication A2, as amended:

"For replication numbered A2 plaintiff adopts all the averments of replication A1, as hereinabove set forth, down to and including the words 'on the business stationery of said concern," and adds thereto the following: And previously to the opening of this account carried on business correspondence with plaintiff on said stationery. The Bay City Roofing & Sheet Metal Works was described in the reporting agencies of Dun and Bradstreet, who are engaged in giving to their subscribers in the trade information in such matters, as composed of said Paterson, Nelson, and Max. The Bay City Roofing & Sheet Metal Works was carried in the city directories of the city of Mobile, Ala., and advertised in the daily newspapers in Mobile, as so composed. It was treated and spoken of generally in the trade in Mobile as a partnership composed of said individuals, and W.J. Nelson, who was interested with the said Paterson with the active management of said concern, advised the trade generally and plaintiff that it was a partnership as so composed; that said Paterson stated to the representatives of Dun and Bradstreet that he was a partner in said company, and he had notice of all of the facts as hereinabove set forth at the time the goods heroin sued for were sold; and plaintiff alleges that its authorized representative, who for it and in its behalf extended the credit for which this suit is brought at said time, knew the facts as hereinabove set forth, and sold the goods whose value is sued for at the request of said Paterson, reasonably believing from said facts and such request that he was a partner in said concern, and the credit was extended with the knowledge of said Paterson because of such belief."

Armbrecht, Johnston & McMillan, of Mobile, for appellant.

Brooks & McMillan, of Mobile, for appellee.

McCLELLAN J.

The appellee instituted this action against the Bay City Roofing & Sheet Metal Works, and "W.B. Paterson and W.J. Nelson as partners," composing the same. Plaintiff stated its case in common counts. The court, trying the case without jury, rendered judgment against the defendants. W.B. Paterson alone appeals and assigns errors.

Through plea 2 Paterson set up that he was not a member of the partnership at the time in question. In replications A1 as amended and A2 as amended the plaintiff set up an estoppel against Paterson to assert his nonmembership in the concern. The report of the appeal will reproduce these replications. Paterson's demurrers to these replications were overruled. These rulings are assigned for error, but they are waived by a failure to insist upon them on appeal. So the question of the sufficiency of these replications is not considered. They are to be accepted as efficient in raising and defining, for this review, the issues tendered by their averments. Paterson joined issue on these replications.

The only errors assigned and urged on brief for appellant relate to rulings on the admission of evidence touching the issue of partnership vel non on the part of Paterson in respect of that status, effect upon liability to the plaintiff, a third party, for the goods sold, etc., to recover for the value of which the action was brought.

On March 28, 1914, the appellant indorsed, over his own signature, on a letter from R.G. Dun & Co. to him, the following: "I acknowledge my connection as above." This letter read:

"It is claimed, or otherwise reported, that you are a general partner in the firm of Bay City Roofing & Sheet Metal Works (not inc.), doing business at Mobile, Ala., and as such general partner liable for all the debts and obligations of the said firm. Please inform us below whether you

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