Jemison, Ficklin & Co. v. Minor & Bizzell

E. W. WALKER, J. 1. The evidence tended to show, that the plaintiffs’ hbrse was hired to certain persons, who were engaged in running a line of stages between Columbus and Selma; and that, in consequence of the neglect 37 of their servant, he was lost. The suit was against “Jem-ison, Ficklin & Co.,” and was brought under section 2142 of the Code; the individuals composing the firm not being named either in the summons or complaint, Hence, in order to a recovery, it was essential that the plaintiff should prove that the persons who were his bailees, and by the negligence of whose servant his horse had been lost, transacted business under the common name of Jemison, Ficklin & Co. The plaintiff’s evidence tended to establish that fact. On the other hand, evidence was introduced by the defendants, which tended to show that the true and only firm name of the persons who were engaged in running that line of stages was “Jemison, Ficklin & Powell.” It is to be gathered from the bill of exceptions, that one of the disputed points in the court below was, whether the bailees of the plaintiffs, who were the owners of the stage-line referred to, did in fact transact business under the name of Jemison, Ficklin & Co. If they did, F. C. Taylor, who, it is shown, was one of the persons engaged in running that line of stages, was a party to the suit, and would have been directly affected by the judgment. Inasmuch as there was some evidence tending to show that the plaintiffs’ bailees did transact business under the name of J emison, Ficklin & Co., and as, upon that hypothesis, a judgment in favor of the plaintiff would bind property in which Taylor had a partner’s interest, we cannot see how the latter can be considered a competent witness for the purposes for which he was offered by the defendants. Considering the case in the aspect in which it was presented by the plaintiffs’ proof, to have allowed Taylor to testify that the plaintiffs’ bailees, of whom he was one, were incorrectly described as “Jemison, Ficklin & Co.,” and had no such common name as that, would have been to permit him to discharge himself by his own evidence from a pending suit. 2. It was shown that B. F. Ficklin was a member of the firm, (whatever was its true style,) which hired the horse; and any act or declaration of his, in the course of the partnership business, which tended to show a recog 38 nition of “Jemison, Eicklin & Co.” as the firm name, was relevant testimony for the plaintiff. Upon this principle, we think the facts detailed by the witness Spencer were admissible, however slight the effect to which they were entitled. — Collyer on Part, §§ 422-3; Sanders v. Stokes, 30 Ala. 432. The judgment of the circuit court is affirmed.