Vinegar Bend Lumber Co. v. Howard, Hooks & Henson
| Decision Date | 23 April 1914 |
| Docket Number | 789 |
| Citation | 186 Ala. 451,65 So. 172 |
| Court | Alabama Supreme Court |
| Parties | VINEGAR BEND LUMBER CO. v. HOWARD, HOOKS & HENSON. |
Appeal from Circuit Court, Washington County; John T. Lackland Judge.
Action by the Vinegar Bend Lumber Company against Howard, Hooks & Henson, individually and as partners. Judgment for defendants, and plaintiff appeals. Affirmed.
The suit was for a certain sum due by account for lumber sold to defendant. The third count of the complaint claims the sum as due for lumber furnished under a contract with defendants for the building of a dwelling house, alleging that plaintiff was an original contractor, and praying for the enforcement of its lien on the house and lot. Demurrers were sustained to the third count original and as amended, and a second amendment was disallowed, and the case was tried on the first two counts in general assumpsit. At the conclusion of the evidence the court directed a verdict for defendant.
Turner Wilson & Tucker, of Chatom, for appellant.
Granade & Granade, of Chatom, for appellees.
The defendants are sued upon a joint obligation to pay for some lumber ordered by and delivered to one Smith, who was employed by defendants in their turpentine business and commissary.
Smith's testimony is that he was authorized by the defendant Howard a member of the firm of Howard, Hooks & Henson, to order lumber from plaintiff for building a dwelling house for Smith, and to have it charged to the account of Howard, Hooks & Henson; that he so ordered a bill of lumber, by a messenger of his own; and that parts of the order were actually delivered to him--enough to build the four sides of the house. This messenger carried the order, and ordered it charged to the partnership, and it was so charged.
It does not appear that the partnership ever received the lumber, or derived any advantage therefrom, nor is it claimed that either Hooks or Henson had anything to do with the making of the debt, or any knowledge of its making until afterwards, when they and the partnership declined to ratify or be bound by it.
Under the repeated rulings of this court, plaintiff could not recover in this suit without showing a joint obligation on the part of the several defendants sued. Handley v Shaffer, 59 So. 286, and cases cited. Conceding, therefore, that Howard was bound to the plaintiff for the value of the lumber, it was still necessary to show that his...
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