Spencer v. Blanke Mfg. & Supply Co.

• Decision Date: 31 October 1929
• Docket Number: 2 Div. 934.
• Citation: 124 So. 904,220 Ala. 350
• Parties: SPENCER v. BLANKE MFG. & SUPPLY CO.
• Court: Alabama Supreme Court

124 So. 904

220 Ala. 350

SPENCER v. BLANKE MFG. & SUPPLY CO.

2 Div. 934.

Supreme Court of Alabama

October 31, 1929

As Modified on Denial of Rehearing December 19, 1929.

Appeal from Circuit Court, Hale County; R. B. Carr, Judge.

Action on promissory notes by the Blanke Manufacturing & Supply Company against the Gallion Creamery Company, and W. M Spencer and others, operating and doing business as the Gallion Creamery Company, and individually. From a judgment for plaintiff, defendant Spencer appeals. Reversed and remanded as to defendant Spencer.

R. B Evins, of Birmingham, for appellant.

Hobbs Craig & Brown, of Selma, for appellee.

SAYRE J.

Action by appellee against Gallion Creamery Company, which the evidence showed to be a joint adventure, W. M. Spencer and others whom appellee, plaintiff, sought to charge as parties to that adventure. Plaintiff had judgment against the creamery, W. M. Spencer, and one other. Spencer alone appeals.

Plaintiff's claim was evidenced by a series of promissory notes executed as were the notes considered in the case of Briel v Exchange National Bank, 172 Ala. 477, 55 So. 808, and payable to plaintiff. These notes signed "Gallion Creamery Company, Samuel E. Sparling, Pres. W. M. Spencer, Treas.," evidenced, prima facie, the personal liability of defendant, appellant Spencer, subject to be shifted by pleading and proof. The authorities for this proposition of law are cited in the Briel Case, supra. See also section 9048 of the Code in this connection. The decision in Peabody School Furniture Co. v. Whitman, 6 Ala. App. 182, 60 So. 470, cited by appellant, was based upon the evidence in that case in which the Briel Case was cited with apparent approval along with others, none of which were to a contrary effect.

Appellant insists that he was entitled to the general charge requested on his behalf in the trial court-this upon the theory that the evidence showed that he was never a member of the joint adventure, the Gallion Creamery Company, and that he had signed the notes in suit as agent, attorney in fact, for the creamery and not as joint obligor or as surety. The burden of proof as to that rested upon appellant. Dr. Sparling, who had been a member of the creamery company from its inception and its president, testified that "Mr. W. M. Spencer was a member of the board"-meaning the board of directors elected by the creamery company for the conduct of its business affairs-"from the point of view of participating *** in all its transactions of business. Mr. Spencer was as much a member of the board as any other person. In fact, he was a member of the board as much as myself. He attended the meetings of the board regularly. He voted at those meetings like any other director ***. He was the head of it." From this, in connection with other testimony shown by the record, the court thinks the safer conclusion to be that the question just here at issue was one for jury decision in the first place, which is to say merely that there was some evidence with a tendency to sustain appellee's contention, and so that the general charge requested by defendant, appellant, was refused without error. The court is however of opinion that the greatly preponderating weight of the testimony went to sustain the proposition that appellant was never a member of the creamery company, that his activity in and about its affairs should be explained upon a different hypothesis, and that he signed the notes in evidence "W. M. Spencer, Treas." along with "Samuel E. Sparling, Pres.," for the purpose only of authenticating the signature of the "Gallion Creamery Company."

A director of a joint adventure is not necessarily a member; he may be merely an agent. The paper signed by the original members of the adventure upon its organization as "a sort of working agreement" was not signed by appellant. According to the undisputed testimony, the later practice was described as follows: "The only thing necessary to do to become a member was to bring cream to the Creamery. If a man brought cream to the Creamery he was a member and had a right to vote and vote on the board of directors." And the same testimony described the method of ascertaining and dividing profits. The language of the agreement between the parties to the joint adventure was: "This association shall include any person who delivers dairy products to the cooling station at Gallion, Alabama, and signs this agreement, but upon ceasing to deliver dairy products for a period of ten days successively, shall cease to be a member." The testimony is without dispute that appellant at no time delivered dairy products to the creamery and at no time participated in the profits, if any, which were ascertained and distributed at the end of each period of 15 days. But appellant was interested in and sought to contribute to the success of the adventure for the reason that it was the undertaking of his neighbors and friends and, in the beginning, when funds were needed to put the adventure upon its feet, had lent to them a large sum of money which he sought, in part, to recover by helping it to a successful business. It is clear that the larger affairs of the creamery were intrusted to Dr. Sparling and appellant, and the doctor, testifying as a witness for appellee, said: "It strikes me that Mr. Spencer was as much a partner as I was." "That," he conceded, "is for the court to determine. I don't know whether he was a partner or not." It may be that this and the first-quoted testimony of the witness should be properly classified as "testimonial nonentities" so far as concerns the issues of law and fact...