Starke v. Kenan

GOLDTHWAITE, J. 1. It is said admissions made by attorneys of record bind their clients in all matters relating to the progress and trial of the cause. But to this end they must be distinct and formal, or such as are termed solemn admissions, made for the express purpose of alleviating the stringency of some rule of practice, or of dispensing with the formal proof of some fact at the trial. In such cases they are in general conclusive. [Greenl. Ev. 218, §186.] The written agreement in this case seems entirely within the rule just quoted, and manifest injustice might arise by permitting the party making the admission for the purpose of trial, from afterwards disputing the admitted fact. The only limitation affixed to the admission is, that the court should rule the fact to be competent under the pleadings. The competency of such a fact was settled when this case was here at another term, (see 6 Ala. Rep. 773); yet as the opinion then determined seems to be somewhat misunderstood by the plaintiff’s counsel, we state the reasons which induced it more at large than they are stated in the report. 2. It is difficult to understand what precise mischief the section of the act of 1839 bearing on this point was intended to reach, but clearly it was not the intention to put a defendant upon the denial of the fact of partnership, when the suit is by plaintiffs assuming a firm name; as this would be equivalent to allowing plaintiffs to recover in many cases where the fact would be apparent from their own proof, that some of them had no interest in the cause of action. The plaintiff, in all suits not evidenced by writing, is required to prove his case, and it would be a strange anomaly if a recovery could be had in the names of two or more, when the proof was satisfactory that one of them had no interest whatever in the contract, and that it was not made with him. The statute however, war [821] rants no such inference. It directs that where plaintiffs shall bring suit as a firm or partnership, it shall not be necessary for proof to be made that the individuals named as plaintiffs constitute the members of the firm, unless the defendant puts the same in issue by plea in abatement. [Dig. 324, § 68.] The object of this statute seems to be to revive a rule which was held in the case of Smith v. Hunt, 2 Stew. 222, but which was afterwards overruled in Hunley v. Lang, 5 Porter, 154. In the first of these cases, the suit was by one as surviving partner, and no other proof was given of the partnership or death than grew out of a note payable to the deceased partner, & Co. The court held this was sufficient, and that it rested with the defendant either to plead the fact of no partnership in abatement, or to prove it at the trial under the general issue. In the latter case we considered it the true rule that the plaintiffs suing on a note payable to one of them, & Co. were required to prove that they constituted the firm, as alledged in the pleadings. The difficulty of giving any other construction to the statute than a literal one, arises out of the fact that the insertion of the name of one as plaintiff having no connection with the contract, will entirely change the rights of the parties in relation to set off, and in the event of the death of the party having the actual interest, would transfer it to a stranger. Independent of this, it is inconceivable to us that the law should require the plaintiff to prove his cause of action, (as it does when the action is on an unwritten contract,) and yet require a verdict to be rendered on one entirely distinct from that asserted. In our judgment the utmost effect of the statute is to revive the rule asserted in Davis v. Smith, so far as it is not in conflict with Hunley v. Lang. This being the effect of the statute, it is within that decision that the- defendant might probably show, as we said when this cause was here before, that the promise was to a single individual, and not to the partnership. 3. With regard to the evidence offered of admissions by Starke, that no copartnership existed between himself and Moore, and also that the demand sued for had been settled, we can perceive no substantial objection to their admissibility. The general rule admitting the declarations of a party to the record, applies to all cases where the party has any in [822] terest in the suit, whether others are joint parties on the same side or not, and howsoever the interest may appear. [Greenl. Ev. § 173.] If in this case it had been shown the apparent interest of Starke in this controversy had been assigned to the other plaintiff, a different rule, or rather an exception to it, might obtain, but in the absence of any such proof, we think the declarations properly admissible. The conclusiveness of the admission by the attorney of record has been previously considered, and the question growing out of the release is settled by the decision of Hall v. Alexander, 9 Ala. Rep. 319, in accordance with the ruling below. We have only to add, that there is no error in the record. Affirmed.