Rabitte & Gaudin v. Orr Bros.

STONE, C. J. — It has been too often ruled by this court, to be further open to controversy, that if a husband make a voluntary conveyance or gift directly to his wife, it vests in her an equitable estate, which she has power to charge, and does charge by her contracts lawfully made; — McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67; Seals v. Robinson, 75 Ala. 363; Meyer v. Sulzbacher, Ib. 423; Powe v. McLeod, 76 Ala. 418; McIlwain v. Vaughan, Ib. 489; Washburn v. Gardner, Ib. 597; Loeb v. McCullough, 78 Ala. 533; Loeb v. Manasses, Ib. 555. We think it equally clear, that a married woman, having an equitable separate estate, may become a member of a partnership; and that such partnership may be sued at law in its partnership name, and the partnership effects subjected to sale under a judgment recovered in such suit. — Yarbrough v. Bush, 69 Ala. 170; McCaskey v. Pollock, 82 Ala. 174. And is it not equally true, that a married woman copartner, own [190] ing an equitable separate estate, charges that estate for any debt the partnership makes, within the scope of the partnership dealings? — Parsons on Partnership, 3d ed., 29; Bayzor v. Adams, 80 Ala. 239; LeGrand v. Eufaula Nat. Bank, 81 Ala. 123. This last question is not raised by this record, and the principle is only material as tending to show the changed property rights and liabilities of married women. In the present suit, the husbands, Roddy B. Rabitte and Frank R. Gaudin, are sued as partners, and as individuals. It is not essential to the maintenance of the suit that they alone should be liable. If their wives were thg real partners, the real purchasers, the real debtors, yet the husbands are also liable, if they permitted themselves to be held out as the partners, or as members of the firm. — Ala. Fer. Co. v. Reynolds, 79 Ala. 497, and citations. A suit against the husbands, although not the only partners, or although, as between themselves, not partners at all, if they knowingly permitted themselves to be trusted, or dealt with as such, may be maintained against them, without joining their wives in the suit. — Code of 1876, § 2904; and note to § 2605, Code of 1886. The most important question in this case is, whether Rabitte and Gaudin, the husbands, permitted themselves to be held out, dealt with and trusted as the members of the firm, or as members of the firm. If they knowingly did so, or if the facts and circumstances are such as to reasonably convince the jury that they must have understood that they were dealt with as such, then good faith required that they should have notified Orr Brothers that they were not partners; and a failure to do so would be a fraud, unless it were shown that Orr Brothers knew the wives constituted the firm of Rabitte & Gaudin. It is claimed for appellants, that by accepting a dividend under the assignment the wives made, Orr Brothers have estopped themselves from recovering in this suit. There is nothing in this record to raise that question. Receiving partial payment out of the effects of Rabitte & Gaudin, although the wives united with their husbands in making the' assignment, is no bar to recovering a personal judgment for the balance of the debt, against any or all persons liable to them as partners. And the fact that in the assignment the wives claimed solely to have constituted the firm, does not vary the question, if, under the rules declared above, the husbands have made themselves liable. If an. [191] attempt should be made to subject to this suit any property conveyed by the assignment, then the fact, if fact it be, that Orr Brothers have accepted a dividend under the assignment, would become material. A creditor can not be allowed to claim both under and against an assignment. — Butter & Alford v. O'Brien, 5 Ala. 316; Espy v. Comer, 80 Ala. 333. The testimony of the witnesses, that they supposed the husbands constituted the firm of Rabitte & Gaudin, was mere opinion, and illegal. Partnership, and who compose it, must be proved, not by reputation, or opinion, but as other material facts are proved. Conduct, conversation, control, or any other relevant fact tending to show it, or that persons permitted themselves to be treated or trusted as partners, are among the pertinent questions by which partnership liability is established. We mean the facts — not opinions or conclusions drawn from them. Whether the husbands were the partners, or had permitted themselves to be treated or trusted as such, were inquiries which should have been submitted to the jury. The testimony was neither so clear as to dispense with all inferences to be drawn, nor so entirely in harmony and conclusive, as to relieve the jury of the duty of weighing it. The general charge should not have been given. — 3 Brick. Dig. 109, § 44. Reversed and remanded.