Paterson v. Mobile Steel Co.

McOLELLAN, j. The appellee instituted tbis action against tbe Bay City Roofing & Sheet Metal W«orks, and “W. B. Paterson and W. J. Nelson as partners,” composing the same. Plaintiff stated its case in common counts. Tbe court, trying the case without jury, rendered judgment against tbe defendants. W. B. Paterson alone appeals and assigns errors. [1] Through plea 2 Paterson set up that be was not a member of the partnership at tbe time in question. In replications Al as amended and A2 as amended the plaintiff set up an estoppel against Paterson to assert bis nonmembership in tbe concern. Tbe report of tbe 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 tbe question oí tbe 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. [2] Tbe 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 tbe plaintiff, a third party, for tbe goods sold, etc., to recover for tbe value of which the action was brought. On March 28, 1914, tbe appellant indorsed, over bis own signature, on a letter from R. G. Dun & Co. to him, tbe following: “I acknowledge my connection as above.” Tbis letter read: “It is claimed, or otherwise reported, that you are a general partner in the firm of Bay Oity 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 acknowledge such general partnership.” Appellant testified as follows: “Witness knew that, at the time be wrote on the bottom of the above-mentioned letter that he was giving to the trade a statement that ho was a partner in the Bay City Roofing & Sheet Metal Works. * * * Witness was, at the time he received the letter from Dun & Co. dated March 23, 1914, financing the Bay City Roofing & Sheet Metal Works, and knew, to a dollar, what they owed, and knew, when he received said letter and made the statement he made thereon, that the purpose of that statement was to give to the trade generally knowledge as to who composed that company, and under.those circumstances he signed the statement that he was a partner and gave it to Dun & Co.” [3] It thus appears that at that time Paterson unequivocally admitted; fully knowing tbe purpose and result of tbe statement, bis relation as a partner to the concern. Tbe letter and tbe indorsement antedate the oldest item of tbe account, and the evidence leaves no doubt that in tbe sale of tbe goods to this concern the plaintiff relied on Paterson’s relation as a partner. Until tbe contrary appears, a partnership once shown to exist will be presumed to- have continued. Joseph v. Southwark, 99 Ala. 47, 51, 10 South. 327; Letson v. Hall, 1 Ala. App. 619, 623, 55 South. 944; 22 Ency. of Law, pp. 49, 50; 30 Cyc. p. 403. [4, 5] Where the controversy is between a stranger and tbe ostensible firm, or one sought to be charged as a partner therein, the utmost strictness of proof is not required to charge persons as partners. Cain Lumber Co. v. Standard, etc., Co., 108 Ala. 346, 18 South. 882. In that character of controversy,, estoppel in favor of the creditor of the firm may be established by evidence directed to-showing that such person or persons acted as partners; that by tlieir habits and course of dealing, conduct, and declaration they induced the creditor to deal with them as such,, in good faith. Cain Lumber Co. v. Standard, etc., Co., supra. [6] Complaint is made of the reception of evidence narrative of tbe appellant’s alleged acts in signing or countersigning checks issued by tbe Bay City Roofing & Sheet Metal. *473 Works. Since the act of signing or countersigning the checks was a collateral matter, directed to the proof of appellant’s real or apparent relation to the concern, it was not necessary to introduce tire checks as the best evidence in the premises. 6 Mich. Dig. Ala. Rep. pp. 151-2. The assignments of error based on the reception of this evidence are without merit. [7] As will be noted by reference to the allegations of the mentioned replications (the sufficiency of which against demurrer is not presented for review), these circumstances are enumerated as conducing to disclose appellant’s connection with the concern, or a course of conduct or silence on his part that was calculated to induce a stranger, acting in good faith, to deal with the concern as if appellant was a partner therein: (a) The use of stationery on which appellant was named as a party in interest; (b) the reports of Dun and Bradstreet, reporting agencies that give information to the trade, wherein it was recited that appellant was one of the partners of the metal works; (c) city directories of Mobile showing that the metal works was composed of appellant and others; and (d) advertisements in the newspapers of Mobile bearing the like information. Without regard to the independent legal efficacy or materiality of these circumstances, either -to prove of themselves the existence of a partnership of which appellant was asserted to be a member, or to raise an estoppel against appellant to dispute, as against a stranger creditor, the existence of bis connection with tlie concern, it is manifest that the result of the recital of these circumstances in the replications rendered proof of them material, and also admissible. Postal Tel. Co. v. Lenoir, 107 Ala. 640, 644, 18 South. 266. [8, 9] In this connection it may be well to state that there was evidence from which it might have been reasonably found that the appellant knew of the use of the stationery and of the existence of the publications; that appellee relied on the status of fact they tended to evidence; and that appellant took no effective steps to repudiate them so as to deprive a stranger (appellee), then and thereafter dealing with the concern, of a continuing right to rely on appellant’s connection therewith. Joseph v. Southwark, supra; Humes v. O’Brien, 74 Ala. 64; Cain Lumber Co. v. Standard, etc., Co., supra. W. J. Nelson, wlio was referred to in the publications and on the stationery as a proprietor of the concern, along with appellant, and who more immediately conducted the business, was permitted, over appellant’s separate objection, to testify that be gave the information borne by the directories at the office of the concern. If, as phases of the evidence up to that point went to show, appellant had been in fact, or was in fact, a partner with Nelson, the substance and source of the information thus given was admissible, notwithstanding- appellant himself may not have known of its communication. Shackelford v. Williams, 182 Ala. 87, 62 South. 54; Humes v. O’Brien, 74 Ala. 67. There is no merit in assignments 17, 19, 20, and 22. [10] On August 3,1916, appellant was served with process from the law and equity court of Mobile in an action brought by the Slatington-Bangor Slate Syndicate, a corporation, against appellant and Nelson as partners composing the Bay City Roofing & Sheet Metal Works. In rebuttal, the appellee was permitted to introduce the summons and complaint and the sheriff’s return of service of the process on this appellant. On appellant’s cross-exaifiination he testified, in efféet, that he remembered nothing about that suit, and gave no attention to it, took no action in respect of its or bis defense thereto. These papers, with the service of their process upon appellant, afforded some evidence of appellant’s actual acquiescence in the continued general acceptance of his previously avowed relation as a partner in the concern. If he was not then a partner, it is reasonable •to suppose, at least until otherwise explained, that, when so formally impleaded in that relation, he would have talsen some appropriate steps to deny or to repudiate its existence. The assignments of error urged in the brief a're without merit. Affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.