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the court, speaking through Justice Sharpe, i to make that plain to you, that that conviction, says:

if you have a conviction of the defendant's “Therefore we hold to the opinion that charge case, must arise out of the evidence in the

guilt after considering all the evidence in the 1 was calculated to confuse and mislead the jury and that its refusal was not error. The reach must be based upon the evidence of

In other words, whatever decision you decisions on this point in Cohen v. State, 50

course; Ala. 108, Hodge v. State, 97 Ala. 37, and Walker v. State, 23 So. Rep. 149, are overruled.

"So that I will restate that part of the

definition of a 'reasonable doubt.' If after conThe cases of Ellis v. State, 25 So. Rep. 1, and sidering all the evidence in the case there is Jones v. State, Ib. 204, upholding the giving of in the minds of the jury a fixed conviction of similar charges, are not in conflict with this. the defendant's guilt, and that conviction arises The vice of such charges being only in their out of the evidence in the case, then there is tendency to mislead, under the settled rule, no reasonable doubt in the sense in which that neither the giving nor refusal of them is reversible error."

term is used in law." In Ellis v. State, 120 Ala. 333, 25 South.

The oral cbarge of the court must be tak

en as a whole. 1, the defendant excepted to that portion of

The court, after the first the court's oral charge as follows: "A rea

exception immediately above Doted was resonable doubt is a doubt for which

served, stated in explanation of what had may be assigned." The court there held been said, or, as the court puts it, restated · that this definition was correct, and cited the proposition as follows: in support Hodge v. State, 97 Ala. 37, 12 "If after considering all of the evidence in South. 164, 38 Am. St. Rep. 145; Walker v. the case there is in the minds of the jury a State, 117 Ala. 42, 23 South. 149. In Jones fixed conviction of the defendant's guilt, and v. State, 120 Ala. 303, 25 South. 204, the that conviction arises out of the evidence in the court, in its oral charge to the jury in de- case, there is no reasonable doubt in the sense

in which that term is used in law." fining a "reasonable doubt,” among other things, said, “It is a doubt for which a rea "Fixed" means, "of an established, UNson may be given." The court there held changing permanent character; settled ; lastthat this is one of the correct definitions of ing." "Conviction" means, “the state of bea reasonable doubt.

ing convinced ; firm belief, founded on eviIt was not error for the court to charge dence.” Fixed conviction of guilt "arising the jury that a "reasonable doubt is a doubt out of the evidence" is, therefore, an estabfor which there exists a reason to be found lished unchanging belief founded on the eviin the evidence."

dence, and is the equivalent of a belief from [3,4] The defendant excepted to the fol- the evidence, beyond a reasonable doubt, of lowing portion of the court's oral charge to the guilt of the defendant. the jury:

There is no error in the record. The judg"If after you have considered all the evi- ment of the circuit court is affirmed. dence in the case you have in your minds a Affirmed. fixed conviction of the defendant's guilt, then there is no reasonable doubt in the sense in which that term is used in law."

Ex parte Louis YOUNGBLOOD, (6 Div. 88.) After the exceptions above noted had been (Supreme Court of Alabama, April 17, 1924. Interposed, the court gave the following oral Rehearing Denied May 15, 1924.) charge to the jury, to which exception was Certiorari to Court of Appeals. reserved:

S. T. Wright, of Fayette, for petitioner. “Gentlemen of the jury, referring further Harwell G. Davis, Atty. Gen., opposed. to the definition of 'reasonable doubt,' and to the instructions which the court gave you to THOMAS, J. Petition of Louis Youngblood this effect, that if, after considering all the for certiorari to the Court of Appeals to reevidence in the case, there is in your minds a view and revise the judgment and decision of fixed conviction of the defendant's guilt, then said court in the case of Youngblood v. State, there is no reasonable doubt in the sense in | 100 South. 87. which that term is used in law, the court wishes Writ denied.

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(100 So.)

8. Partnership w52_Evidence that defendEGGLESTON v. WILSON et al. (7 Div. 462.) ant denying partnership authorized witness

to pay debts of partnership held admissible. (Supreme Court of Alabama. April 17, 1924.) In an action for goods sold to a firm,

wherein defendant claimed he was not a part1. Partnership w218(3)-Whether defend- ner, evidence that he had authorized witness to ant was a member of firm and held himself pay firm's debts was admissible as showing his out so as to be liable as such held for jury relation thereto. on conflicting evidence. In an action for goods sold to a firm,

9. Partnership Co49—"Common reputation"

inadmissible to establish partnership between whether defendant was a member of the firm,

individuals. and whether he held himself out 'so as to subject himself to liability as such, held for jury,

“Common reputation” is not admissible to where the evidence was conflicting.

establish existence of a partnership between

individuals. 2. Trial C260(1)-Refusal of requested 10. Partnership (m37—Necessity of knowle charges covered by oral charge not error.

edge unnecessary, where personnel of part. Error cannot be predicated on refusal of nership established by independent testimony, charges which should have been given, but

If a partnership is established by indewhich were covered by the oral charge.

pendent testimony to have been composed of

alleged members, necessity of knowledge to 3. Trial w 194(13)-Instruction held errone- enable one dealing with it to hold its members ous as invading province of jury.

liable is not required, for members are indiIn suit for goods sold to a firm, wherein de- vidually liable for partnership debts. fendant claimed he was not a partner, an instruction to find for plaintiff, if the creditor 11. Partnership w37-Rule of notice inapmailed defendant a statement of the account plicable, where one dealing with partnership sued on, which was not returned, or no objec has no opportunity of hearing such notice. tion made within a reasonable time, defendant Where liability of a partnership is sought would be bound by it, as an account stated to be imposed by estoppel, rule of notice is insought to fasten hability on defendant as a applicable to one dealing with partnership who matter of law because thereof, and was er has no opportunity of hearing of such notice. roneous as invading province of jury.

12. Partnership 50_Liability not imposed, 4. Partnership Em218(2)-11 suit for goods unless member was dealt with on faith of sold to firm, refusal of plaintiff's requested his partnership connection, and, unless such charge held erroneous.

condition is mot, evidence of reputation is In an action for goods sold to a firm,

inadmissible, wherein defendant claimed not to be a partner, One seeking to impose a partnership liabilplaintiff's charge, predicated on evidence that, ity on another because of holding out must have if defendant was to furnish capital in a ven- dealt with partnership on faith that other was ture, and another was to furnish labor, and a member, and, unless that condition is met, profits were to be divided, that it would make evidence of reputation to show a holding out is them partners, and defendant would be liable not admissible. for goods sold to the firm, was not abstract: 13. Partnership C50—Matters provable by and, not being fully covered in oral charge, its refusal was, erroneous.

general reputation stated.

Where a partnership liability is shown to 5. Trial w 194 (13)-Charges invading prov- exist by independent testimony, general repuince of jury held properly refused.

tation is competent to impute a probable In an action for goods sold to a firm, knowledge to alleged partner residing in comwherein defendant claimed he was not a part-munity that he was being held out as partner, ner, refusal of plaintiff's requested charges, or to a creditor in that cominunity of such which were equivalent to directing a yerdict holding out, or that there had been a dissolufor plaintiff on evidence which presented a

tion after one had existed. question for jury, were properly refused.

14. Partnership m50—Evidence of common 6. Justices of the peace n82(2)-Refusal to

reputation that defendant was regarded as allow witness to contradict statement in re partner held admissible. turn of service held proper.

In an action for goods sold to a firm, where. The court properly refused to receive tes in defendant claimed he was not a partner, timony of witness that he had served a jus- evidence of common reputation in that neigh. tice court summons on defendant, not shown to borhood was competent as tending to show that have been served by the return, since it was in defendant knew that his alleged copartner was effect a contradiction of his return or failure holding him out as being a partner. thereof as shown by the process.

15. Partnership ww218(2)-Instruction 7. Evidence 179(2)—Secondary evidence cluding inference that defendant held himself

of correspondence admissible after refusal or out as partner held erroneous. failure to produce on demand.

In an action for goods sold to a firm, Secondary evidence of contents of cor

wherein defendant claimed he was not a partrespondence was admissible after demand for ner, giving of defendant's requested charge, production and refusal or failure to produce.

which excluded inference which might be drawn Cm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ex

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from evidence that defendant held himself out, the Day & Night Auto Repair Company, your generally as a partner, was erroneous.

verdict must be in favor of the defendant."

“(3) The court charges the jury that the 16. Partnership 46-Manner of establish- burden of proof is on the plaintiff to reasoning proof of partnership stated.

ably satisfy you from a consideration of all the Proof of partnership must be made by con evidence that Wilson was in fact a partner duct, control, conversation, or other relevant with Vann; or that he held himself out to the facts showing relation, or that a person has plaintiff as such a partner; and that you canpermitted himself to be treated as a partner. not consider statements made by Wilson which

were never communicated to plaintiff in deterAppeal from Circuit Court, Clay County; mining whether Wilson held himself out to George F. Smoot, Judge.

plaintiff as a partner of said Vann." Action on common counts by R, H. Eggles

Walter S. Smith, of Lineville, for appelton, as trustee in bankruptcy of the Southern lant. Tire & Accessories Company, against E. W. A. L. Crumpton, of Roanoke, for appellees. Wilson, individually, and as a member of the firm of Day & Night Auto Repair Company.

THOMAS, J. This is the second appeal, Judgment for defendants, and plaintiff ap- Eggleston v. Wilson, 208 Ala. 167, 94 South. peals. Transferred from Court of Aj under Acts 1911, p. 449, 8 6. Reversed and

The suit was on account, account stated, remanded.

etc. It was alleged by way of replication These requested charges were refused to to defendant's pleas that defendant Wilson plaintiff :

held himself out to plaintiff as a partner in “(3) If the jury believe the evidence, you the business conducted in the name of Day must find a verdict for the plaintiff under count & Night Auto Repair Company, the purchaser 3 of the complaint.”.

of the merchandise in question, and on said “(9) If the jury believe the evidence in this representation plaintiff relied in making case, you must find a verdict in favor of the sales thereof. plaintiff and against the defendant, E. W. The issues of fact are somewhat similar Wilson, individually, and doing business under to those on which the trials were bad in the firm name and style of Day & Night Auto Sorrell v. Scheuer, 209 Ala. 268, 96 South. Repair Company."

"(10) I charge you, gentlemen of the jury, 216, and Tennessee Valley Bank v, Valley
that, if you are reasonably satisfied from this View Farm (Ala. Sup.) 97 South. 62. De-
evidence that Vann was to furnish the labor, fendant Wilson did not dispute the fact that
and Wilson was to furnish the capital in the plaintiff sold the goods in amounts and val.
Day & Night Repair Company, and then they ues claimed to the Day & Night Auto Re
two were to divide the profits of the business, pair Company, admitted that “there was no.
if any, that that would make them partners, contest as to the indebtedness" of the Auto
and Wilson would be liable to plaintiff in this Repair Company to plaintiff. and that the
suit for the goods bought by Vann from South- amount due at the time was $966.21.
ern Tire & Accessories Company."
(15) The jury are instructed that a stated

[1] The evidence being in conflict on the
account established prima facie correctness of questions (1) whether or not Wilson was a
the items of the account, and, unless this pre- member of said partnership, and (2) whether
sumption is overcome by proof of mistake or or not he held himself out in such wise as
error, it becomes conclusive, and plaintiff is to subject him to a partnership liability, they
entitled to recover the amount sued for with are jury questions. Affirmative charges re-
interest thereon."
“(16) The jury are instructed that, if you McMillan v. Aiken, 205 Ala. 35, 40, 88 South.

quested by plaintiff were properly refused. are reasonably satisfied from the evidence that

135. the Southern Tire & Accessories Company, or its agent, made out a statement of the account

[2, 3] Refused charges 6 and 7 should have sued upon, and mailed it to E. W. Wilson, and been given. However, they were covered by the said Wilson retained it, and made no ob- instructions contained in the oral charge. jection within a reasonable time, he will be so, also, were refused charges 11 and 13. bound by it as an account stated, and you must Charge 16, requested by plaintiff, was propfind a verdict in favor of plaintiff.”

erly refused. It was an invasion of the These charges were given at defendant's province of the jury. There was a tendency request :

of evidence to the effect that Wilson was not

a debtor of plaintiff, or a member of the "(1) The court charges the jury that, un- partnership, and the charge sought to fasten less you are reasonably satisfied from all evi- liability upon him as a matter of law, merely dence in this cause that E. W. Wilson, in fact because plaintiff mailed to him a statement a partner of C. R. Vann, doing business under of account which was not thereafter returnthe partnership name of Day & Night Auto ed, or no objection made within a reasonable Repair Company, or that E. W. Wilson told the salesman of the plaintiff that he was a partner

time. Such action on Wilson's part, if he of said C. R. Vann at the time of or prior to received the statement, might be considered the time the goods were shipped by plaintiff to by the jury, with the other evidence, in de

For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

aH

TETE

(100 80.) termining whether he was indebted to plain , correspondence between plaintiff and defendtiff or liable as upon a partnership debt. It ant, and refusal or failure to produce, secwas within the province of the jury to de ondary evidence was permissible of the cide whether such statements were received contents of said documents that were maby Wilson, and, if so, whether his silence terial. Sorrell v. Scheuer, 209 Ala. 268, 96 was a sufficient admission of his dereliction South. 216. In the opinion rendered on first or liability to plaintiff, when considered with appeal it is pointed out that the activities the other evidence, on which to return a ver- of defendant Wilson as to renting and actual dict against him.

possession of the property at and before the 14) Plaintiff's refused charge 10 was not attachment, the payment of partnership abstract. The account on which suit was debts, etc., were competent as evidence. The brought was contracted in October and No-witness Bell should have been permitted to Fember, 1919, after plaintiff's salesman visit- testify that Wilson authorized him to pay ed the place of business of the partnership. other debts of the partnership. Such evi. That salesman testified that during the dence tended to shed light on the relations month of October, and before the sales were of Wilson and Vann as to the business conmade to the Day & Night Auto Company, he ducted under the firm name. saw C. R. Vann, and the latter represented Plaintiff sought to show that by "common to him that E. W. Wilson, the defendant, repute” or “common report" defendant was was his partner, doing business under said regarded as a member of the partnership, firm name, and that fact was confirmed by In this connection it is pertinent to inquire Wilson. The witness said that he "went to if defendant's given charges 1 and 3 unduly see Mr. E. W. Wilson about credits on this limited the plaintiff in the nature and degree goods. He told me that he was to put up of proof he might offer under the two issues all the money and Vann was to be the me of fact being tried. chanic and run the place"; and that Wil

[9] The cases in this jurisdiction declare son would pay for goods purchased by Vann, in general terms (1) that, if an actual partand further stated or admitted that he was nership exists; that fact is sufficient to a partner in the business. These inferences charge its members with a partnership liaof fact may be found in defendant's answers bility, without regard to what may have been to interrogatories propounded under the stat- the reputation or common report in that ute and offered in evidence; that he (Wilson) community as to whether or not a designated was to furnish Vann the "necessary money,'

person was a partner therein; and (2) that, and the latter had agreed to pay Wilson one

where it is sought to impose a partnership half of the amount he (Vann) took in until liability by way of an estoppel, the party he paid $1,000. In the refusal of plaintiff's sought to be subjected to such liability (A) charge 10 reversible error was committed, must have "held himself out as a partner," as it was not fully covered in the oral and (B) he who seeks to so hold that other charge.

liable for holding himself out as a partner (5) As has been indicated, a jury ques- must have dealt with the partnership uption was presented by the conflicting tenden- on the faith of such other person being a cies of evidence—that tending to show plain- member thereof. It follows that "common tiff duly addressed and mailed a statement reputation” is not admissible to establish the of the account on which the suit is brought existence of a partnership between indi: and wrote letters to defendant Wilson re

viduals. Carter, Hogan & Plowman questing payment of the indebtedness, and Douglass, 2 Ala. 499, Clark v. Taylor, 68 Ala. no reply was made by defendant; that for 453, and Humes v. O'Bryan & Washington, defendant to the effect that the same were 74 Ala. 64, 81, were actions against an alnot duly addressed to him or received, and leged partnership on account. 30 Cyc. 407. that he did not get any mail from the office Cont. R. & B. Co. v. Smith, 76 Ala, 572, 52 of mail route shown to have been employed Am. Rep. 353, was an action against an alby plaintiff for foregoing communications to leged partnership for negligence in operating defendant. Hence charges 3, 9, and 15, re

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a boat; Knard v. Hill, 102 Ala. 570, 574, 15 quested by plaintiff, were properly refused. South. 345, an action for damages against

[6] It was indicated on former appeal that individuals alleged to have been members the judgment rendered in justice court in at- of the partnership charged with negligence; tachment

, culminating in personal liability, Weil Bros. v. Hanks, 201 Alà. 39, 77 South. was properly excluded when offered as evi- 333, an action for damages for breach of condence in the circuit court; no service of tract by an alleged partnership in the sale of the summons was shown by the return to cotton. In Lewis v. Post & Main, 1 Ala. 74, have been made upon the defendant Wilson. Marble & Son v. Lypes & Co., 82 Ala. 322, 2 The court properly refused to allow A. C. South. 701, and Tanner & De Laney Eng. Co. Ford, to testify that he served the process v. Hall, 86 Ala. 305, 5 South. 584, holdings on Wilson, since this was, in effect, a con- were that the evidence was inadmissible tradiction of his return or failure thereof against one sued as a partner when he has

denied that fact, etc.

The same announce [7,8] After the demand for production of ment of the rule of evidence is contained in

shown by the process.

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First Nat. Bank v. Leland, 122 Ala. 289, 296, | of having or hearing of such' notice as one 25 South. 195 (action on bill of exchange, who is a nonresident or who is not within and the pleas were of coverture); St. Louis, the influence of the "common repute” in that etc., Co. v. McPeters, 124 Ala. 451, 27 South. neighborhood as to the conduct of business 518 (action on account against an alleged sur-by the alleged partners. Humes v. O'Bryan viving member of a partnership, and the plea & Washington, 74 Ala. 64, 81; Cent. R. & B. was set-off); Owensboro Wagon Co. v Bliss, Co. v. Smith, 76 Ala. 572, 578, 52 Am. Rep. 132 Ala, 253, 260,31 South. 81, 90 Am. St. Rep. 353; Guin v. Grasselli Chem. Co., 197 Ala. 907 (common counts against alleged partners 117, 72 South. 413; McAleer v. People's and pleas denied the existence of the part- Bank, 202 Ala. 256, 259, 80 South. 94. nership and sought to set up a corporate ex [12, 13] It is then established by this court istence, or de facto corporate operation there “that one seeking to impose a partnership of). These three cases last cited are said to liability upon another because of so holding contain dicta on this rule of evidence. It is out shall have dealt with the partnership (1) unnecessary to decide whether the same was upon the faith that the other was a member" dicta. 30 Cyc. 407; L. R. A. 1918D, 505, 506. (Marble & Son v. Lypes & Co., 82 Ala. 322, In Guin v. Grasselli Chem. Co., 197 Ala. 117, 2 South, 701; Tannér & De Laney Eng. Co. 72 South. 413 (suit in assumpsit, and plea v. Hall, 86 Ala. 305, 5 South. 584; Knard v. of non est factum), it is declared that “the Hill, 102 Ala. 570, 15 South. 345); (2) unless existence of partnership cannot be proved by "that condition is met, there is no question general repute; yet, when the fact is other- as to the admissibility of evidence of reputawise established, general notoriety in the tion to show a holding out” (Knard v. Hill, neighborhood may be proved as competent 102 Ala. 570, 574, 15 South. 345, 347; Tanevidence, to charge a resident in such com ner & De Laney Eng. Co. v. Hall, 86 Ala. 305, munity with knowledge of it. And in 5 South. 584; Meharg Liquor Co. v Davis, Reeves v. Jordan, 197 Ala, 64, 70, 72 South. 189 Ala. 483, 66 South. 576; Marble & Son 322, 325, the declaration is contained: v. Lypes & Co., 82 Ala. 322, 2 South. 701);

“In reaching this conclusion we have given (3) that, where a partnership liability is careful attention and study to only the legal shown to exist by independent testimony, it evidence in the case, leaving out of view the is then competent to prove general reputatestimony of those witnesses who testified only tion in order to impute a probable knowledge as to their general understanding or opinion to (A) the alleged partner residing in the concerning the partnership."

community that he was being so held out as

partner (Knard v. Hill, supra), or to (B) a (10, 11] If the partnership is established creditor in that community of such holding by independent testimony to have been com- out as partner (Tanner & De Laney Eng. Co. posed of the alleged members, the necessity v. Hall

, supra), or (C) to a creditor in that of knowledge thereof, to enable one dealing community that there had been a dissolution with the partnership to hold its members lia- of the partnership, if one had existed (Humes ble, is not required, for members are subject v. O'Bryan & Washington, 74 Ala. 64, 81; to individual liability for partnership debts Cent. R. & B. Co. v. Smith, 76 Ala 572, 52 under the terms of law having application. Am. Rep. 353; McAleer v. People's Bank, 202 The statements contained in Humes v. Ala. 256, 80 South. 94). See, also, Alexander O'Bryan & Washington, 74 Ala. 64, 81, v. Handley, Reeves & Co., 96 Ala. 220, 11 and Cent. R. & B. Co. v. Smith, 76 Ala. 572, South. 390. 52 Am. Rep. 353, that where "a partnership [14] Evidence of common reputation in is shown to exist by independent testimony, ) that neighborhood (1) was not competent eviit is then competent to prove a general repu- dence to show that plaintiff (not of that comtation or common report of its existence, in munity) had notice of the members of the order to impute 'a probable knowledge of partnership, but (2) was competent as tendsuch fact to a plaintiff,” and that “for a like ing to show that defendant knew that Vann purpose, the notoriety of a dissolution may was holding him out as being a partner. be shown to charge one with notice of such | There was reversible error in the exclusion fact," and that "perhaps the same rule of the evidence. might apply, as contended, to the nonexis [15] The tendencies of the evidence before tence of a partnership,” were no doubt re- the jury were threefold, viz.: (1) That deferring to a "partnership liability” by way fendant Wilson was a partner in said firm of an estoppel (Weil Bros. v. Hanks, 201 Ala. before and at the time the credit was extend39, 77 South. 333; Meharg Liquor Co. v. ed it by plaintiff ; (2) that defendant held Davis, 189 Ala. 483. 66 South. 576; Marble himself out generally as a partner with a & Son v. Lypes & Co., 82 Aka. 322, 2 South. knowledge of the fact that the partnership 701), and not to the liability imposed by law was being dealt with on the faith of his beupon a partner (L, R. A. 1918D, 511, note). ing a member; and (3) that defendant so Therefore, where the liability is sought to acted, and that statements made by him to be imposed by way of an estoppel, this rule plaintiff's salesman, with reference to the parof notice does not apply to one dealing with ticular sales to be made to the partnership, a partnership and who has no opportunity were such as to estop him from denying his

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