Vinegar Bend Lumber Co. v. Hamilton Brown Shoe Co.

• Decision Date: 02 April 1901
• Citation: 129 Ala. 271,29 So. 857
• Parties: VINEGAR BEND LUMBER CO. v. HAMILTON BROWN SHOE CO.
• Court: Alabama Supreme Court

29 So. 857

129 Ala. 271

VINEGAR BEND LUMBER CO. v. HAMILTON BROWN SHOE CO.

Supreme Court of Alabama

April 2, 1901

Appeal from circuit court, Washington county; A. H. Alston, Judge.

Action by the Hamilton Brown Shoe Company against Noel E. Turner and others, partners as the Vinegar Bend Lumber Company. Judgment for plaintiff, and defendant lumber company appeals. Affirmed.

This action counted upon the common counts for goods, wares, and merchandise sold by the plaintiff to the defendants. The manner in which the parties to the case were styled in the complaint is shown by the opinion. A copy of the summons and complaint was served upon all three of the alleged partners and they all appeared and pleaded. Verda Turner pleaded coverture, and also that she was not a member of the firm and did not owe the debt sued for. Noel E. Turner and Hubert Turner pleaded separately the general issue, and they also as individuals, filed a verified plea, denying the corporate capacity of the plaintiff. The plaintiff replied to this verified plea, setting up the fact that defendants had dealt with the plaintiff as a corporation in reference to the subject-matter of the suit, and that, therefore, they were estopped from denying its corporate character. The defendants demurred to this replication, upon the ground that it stated only a conclusion of the pleader and alleged no facts showing an estoppel. The court overruled this demurrer. All of the defendants filed a verified plea, in which they denied on information and belief the correctness of the account sued on, which was verified by the affidavit of the plaintiff. This was the only plea filed by all the defendants. A jury was selected, and the trial proceeded. The plaintiff introduced in evidence, against defendants' objection and exception, a certificate of its incorporation. Plaintiff then introduced in evidence, against defendants' objection and exception, certain laws of Missouri relating to the method of incorporating manufacturing and business corporations. Plaintiff then proved, against the objection and exception of defendants, that the book containing the laws above referred to were the Revised Statutes of Missouri and the laws of that state. Plaintiff then introduced, without objection, the correspondence between plaintiff and the defendant partnership, showing the creation of the debt sued for, and admission thereof by defendants. The plaintiff then rested whereupon the defendants moved to exclude all of plaintiff's evidence, which motion the court overruled. Defendants introduced only one witness, Noel E. Turner, who testified that Verda E. Turner was his wife; that he did not consent in writing to her making any contract in reference to the subject-matter of this suit; and that she was not a member of the firm of the Vinegar Bend Lumber Company, but that said firm was composed of himself and Hubert Turner. This witness testified, on cross-examination, that he did not know, of his own knowledge, whether the account sued on was correct or not; that he wrote all of the letters which purport to have been written by the defendants, except one which was written by the bookkeeper; that all of said letters were addressed to the plaintiff at St. Louis, Mo., except two, which he wrote to Mitchell & Tonsmeire. The defendants then closed. Plaintiff was then allowed to amend its complaint by striking out the individual names of the defendants, leaving as defendant the appellant, the Vinegar Bend Lumber Company. Defendant thereupon moved the court to enter an order of discontinuance. The motion was refused, and defendant duly excepted. The court, at the request of the plaintiff, gave to the jury the...