Van Derveer v. Strickland Bros. Mach. Co.

• Decision Date: 14 January 1919
• Docket Number: 6 Div. 497
• Citation: 81 So. 197,16 Ala.App. 677
• Parties: VAN DERVEER et al. v. STRICKLAND BROS. MACH. CO.
• Court: Alabama Court of Appeals

81 So. 197

16 Ala.App. 677

VAN DERVEER et al. v. STRICKLAND BROS. MACH. CO.

6 Div. 497

Court of Appeals of Alabama

January 14, 1919

Rehearing Denied Feb. 4, 1919

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Assumpsit by Strickland Bros. Machine Company against Joseph P. Van Derveer and A.R. Aldridge and others. Judgment for plaintiff and defendants appeal. Affirmed.

Brown &amp Ward, of Tuscaloosa, and Middleton & Reynolds, of Clanton for appellants.

Edward De Graffenried, of Tuscaloosa, for appellee.

BROWN P.J.

This is an action by appellee against appellant Aldridge and others, on account for goods, wares, and merchandise furnished and work and labor done, the trial resulting in a verdict and judgment against the appellant and Aldridge. The evidence shows that Aldridge owned a large body of timber land in Tuscaloosa county, and appellant owned a sawmill; that they entered into a joint adventure, under a written agreement, by the terms of which appellant sold to himself and Aldridge, for the purpose of carrying out their joint enterprise, the sawmill, at an agreed price to be paid out of the proceeds of the business, and when so paid the mill "and such additional machinery as may have accrued" was to be the property of appellant and Aldridge.

The purpose of the enterprise was to cut and manufacture into lumber all the timber on the Aldridge tract. Aldridge was to be paid $2 per thousand as stumpage, and the net profits, after paying the expense incident to cutting the timber and manufacturing in into lumber, was to be equally divided between appellant and Aldridge. Snyder was employed to set up and operate the mill, and was to be paid for his services $8 per thousand for all lumber cut by the mill. The undisputed evidence shows that Snyder had full authority to direct the operation of the mill and to keep it going; Aldridge was to supervise the cutting of the timber and see that all merchantable timber was cut, and appellant was to market the products of the mill.

On the principles announced in McDonnell v. Battle House Co., 67 Ala. 90, 40 Am.Rep. 99, and Quarles v Kendrick Merc. Co., 79 So. 160, the last-cited case being reviewed by the Supreme Court in 79 So. 304, so far as the rights of appellee are concerned, a partnership existed between Van Derveer and Aldridge, and they were liable in this case as such, if the merchandise made the basis of the account was furnished at their instance or at the instance of their duly authorized agent. There was no dispute as to the fact of Snyder's employment, nor as to the fact that he had full authority to set up and operate the mill; this necessarily carried with it authority to have the necessary repairs made to keep it in running condition. It was also shown without dispute that the parts furnished by plaintiff at the instance of Snyder and Aldridge were necessary to keep the mill going. Therefore the appellant was not entitled to the affirmative charge on the...