Jemison & Sloan v. Dearing's Executors

BYRD, J. 1. The accounts introduced in evidence, against the objection of the appellant Jemison, tended to prove the existence of the partnership, at and previous to the dates of the notes sued on; but, as the partnership was thus proven by other admissible and uncontroverted testimony, the admission of such accounts as evidence was [290] clearly an error without injury.—Shepherd’s Digest, 568, § 90; Jemison v. Smith, 37 Ala. 185 ; Mauldin v. Br. Bank at Mobile, 2 Ala. 502. 2. When one partner affixes the name of the firm to a promissory note, during the existence of the partnership, the partners are, prima fade, liable thereon; and if any member thereof seeks to avoid his liability, the burden of proof lies upon him to make out his defense. Such is the rule in America.—Parsons on Partnership, 201, 202, and notes b and a; Rabey v. O'Grady, 33 Ala. 257; and see authorities cited on the brief of counsel for appellee. There is no testimony in this case, which brings it within any exception to the rule, or its application. The fact that the partnership was a limited one, as shown by the articles executed by the appellants, does not affect the operation of the rule in this ease. Persons who form a partnership, thereby, as to third persons, constitute each other agents to carry on the joint business, and vouch for the integrity of each other; and the law therefore presumes that the act of each, in the name of all, is within the scope of the joint business; and if not, it devolves on the partnership to show it. Such we understand to be the reason and result of the rule. The charge given by the court, upon the evidence set out in the record, and properly admissible, is in substantial conformity with the rule above laid down, and, consequently, correct. 3. The first charge asked by the appellant, announces a clear proposition of law; but there is no evidence in the reeord, upon which the jury could have made any application of it; and the refusal of the court to give it did no injury to any one. 4. As to the second charge asked, we remark, that a person may have given a note for the hire of slaves, and be liable thereon, although the slaves never went into the possession of the hirer. If, by the fault of the owner, the hirer failed to obtain the possession, the latter would not be liable for the hire. But if, at the time the delivery of possession was to take place, the hirer should refuse to receive possession, or did any act which prevented the owner from delivering possession, it seems that the owner might [291] still recover upon a note given for the hire. If the correctness of the charge were conceded, still, when construed with reference to the testimony, it is abstract; ergo, error absque injuria. 5. The third and fourth charges asked may be disposed of together. It is contended that, as the complaint seeks to charge the defendants therein as joint makers of two promissory notes, and not as partners, there is a variance between the complaint and the proof, and that therefore the court should have given these charges. Upon the authority of the cases hereafter cited, and under the effect of sections 2143, 2227, and 2228 of the Code, we hold that, upon a complaint in the form of this, a recovery may be had, by the introduction of a note made by the defendants as partners. They are sued as joint makers of a promissory note; and proving that they executed it as partners, meets the requirements of the rule as to a substantial conformity between the allegations of the complaint and the proof, and authorizes a verdict and judgment in favor of the plaintiff. There is nothing in the Code, which inhibits a partnership note from being given in evidence under a complaint in form of the last on page 551 of the Code, if the plaintiff is the payee in the note, and the defendants are the makers, although executed by one, in the firm name. A surviving partner may be sued on a partnership debt, and a recovery had, without averring that it was a partnership debt.—1 Tidd’s Pr. 6; 1 Chitty’s Pleadings. And the Code having declared, that the liability of partners is several, and therefore either might be sued on a partnership liability, it would seem to follow, from the foregoing doctrine, that partners may be declared against as joint makers of a promissory note executed in the partnership name, without averring that it was executed by them as partners, or that it was a partnership liability, and a recovery had on proof that the note was executed by one of the partners in the firm name. Maynard v. Fellows, 43 N. H. 255 ; Tuttle v. Cooper, 10 Pick. 281; Cutts v. Gordon, 13 Maine, 478; Reddington v. Farrar, 5 Greenl. 379; Hartness v. Thompson, 5 Johns. 160; Anderson v. Henshaw, 2 Day, 272; Parsons on Partnership, 349. The judgment of the circuit court is affirmed.