Nixon v. Woodward

WALKER, P. J. The averments of the third and fourth pleas,.to the effect that there was a partnership agreement between the plaintiff and the defendant, showed only the pleader’s legal conclusion, as the question as to whether the agreement had that effect is one of law for the court to pass upon when the terms of the agreement are disclosed. It is plain that the fact averred in each of those pleas of there having been no accounting between the plaintiff and the defendant was put [154] forward as only one element of the matter of defense sought to be set up to this action on a promissory note, another essential element of which defense was the fact of the-existence uf a partnership relation between the parties. The demurrers to "those pleas pointed out their failure to show by appropriate averments of facts the existence of that relationship; and the court did not err in sustaining- those demurrers. By his seventh plea the defendant alleged as a set-off against the plaintiff’s demand the existence of an indebtedness of the plaintiff to him for the amount of a commission on" a sale of a Pierce-Arrow automobile made to the plaintiff by the defendant as the agent of the automobile company. There was an absence of any evidence of the plaintiff being so indebted to the defendant, as, while the evidence showed that the plaintiff purchased such automobile through the defendant as the agent of the automobile company, it is also showed that he paid to the defendant the amount of its cost, and that by the terms of the agreement between them, in pursuance of which the amount of the note sued on was advanced by the former for the benefit of the latter, the plaintiff was entitled to get such automobile at cost. With the evidence in this condition, the defendant could not have been prejudiced by testimony of the plaintiff to the effect that he had not agreed to pay the defendant any commission on the sale of the automobile. This testimony merely negatived the existence of a fact, the burden of proving AAdiich Avas upon the defendant, and of the existence of Avhich there was no evidence. The only remaining assignment of error seeks to present for review the action of the court sitting Avithout a jury, in rendering judgment for the plaintiff on the evidence adduced. The bill of exceptions does not disclose any finding by the trial court on the evidence. [155] This being true, under the statute governing in such case (Acts of Ala. 1888-89, p. 992, 998, § 11), the conclusions and judgment of the trial court upon the evidence are not presented for review. — Morey v. Monk, 142 Ala. 175, 38 South. 265; King v. Ben F. Barbour Plumbing & Electric Co., 1 Ala. App. 639, 55 South. 1030. Affirmed.