the court, speaking through Justice Sharpe, | to make that plain to you, that that conviction, says: "Therefore we hold to the opinion that charge 1 was calculated to confuse and mislead the jury and that its refusal was not error. The decisions on this point in Cohen v. State, 50 Ala. 108, Hodge v. State, 97 Ala. 37, and Walker v. State, 23 So. Rep. 149, are overruled. The cases of Ellis v. State, 25 So. Rep. 1, and Jones v. State, Ib. 204, upholding the giving of similar charges, are not in conflict with this. The vice of such charges being only in their tendency to mislead, under the settled rule, neither the giving nor refusal of them is reversible error." In Ellis v. State, 120 Ala. 333, 25 South. 1, the defendant excepted to that portion of the court's oral charge as follows: "A reasonable doubt is a doubt for which a reason may be assigned." The court there held that this definition was correct, and cited in support Hodge v. State, 97 Ala. 37, 12 South. 164, 38 Am. St. Rep. 145; Walker v. State, 117 Ala. 42, 23 South. 149. In Jones v. State, 120 Ala. 303, 25 South. 204, the court, in its oral charge to the jury in defining a "reasonable doubt," among other things, said, "It is a doubt for which a reason may be given." The court there held that this is one of the correct definitions of a reasonable doubt. It was not error for the court to charge the jury that a "reasonable doubt is a doubt for which there exists a reason to be found in the evidence." [3, 4] The defendant excepted to the following portion of the court's oral charge to the jury: "If after you have considered all the evidence in the case you have in your minds a fixed conviction of the defendant's guilt, then there is no reasonable doubt in the sense in which that term is used in law." After the exceptions above noted had been interposed, the court gave the following oral charge to the jury, to which exception was reserved: "Gentlemen of the jury, referring further to the definition of 'reasonable doubt,' and to the instructions which the court gave you to this effect, that if, after considering all the evidence in the case, there is in your minds a fixed conviction of the defendant's guilt, then there is no reasonable doubt in the sense in which that term is used in law, the court wishes if you have a conviction of the defendant's case, must arise out of the evidence in the guilt after considering all the evidence in the reach must be based upon the evidence of In other words, whatever decision you case. course; definition of a 'reasonable doubt.' If after con"So that I will restate that part of the sidering all the evidence in the case there is in the minds of the jury a fixed conviction of the defendant's guilt, and that conviction arises out of the evidence in the case, then there is no reasonable doubt in the sense in which that term is used in law." The oral charge of the court must be taken as a whole. The court, after the first exception immediately above noted was reserved, stated in explanation of what had been said, or, as the court puts it, restated the proposition as follows: "If after considering all of the evidence in the case there is in the minds of the jury a fixed conviction of the defendant's guilt, and that conviction arises out of the evidence in the case, there is no reasonable doubt in the sense in which that term is used in law." "Fixed" means, "of an established, uschanging permanent character; settled; lasting." "Conviction" means, "the state of being convinced; firm belief, founded on evidence." Fixed conviction of guilt "arising out of the evidence" is, therefore, an established unchanging belief founded on the evidence, and is the equivalent of a belief from the evidence, beyond a reasonable doubt, of the guilt of the defendant. There is no error in the record. The judgment of the circuit court is affirmed. Affirmed. Ex parte Louis YOUNGBLOOD. (6 Div. 88.) (Supreme Court of Alabama, April 17, 1924. Rehearing Denied May 15, 1924.) Certiorari to Court of Appeals. S. T. Wright, of Fayette, for petitioner. THOMAS, J. Petition of Louis Youngblood for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of Youngblood v. State, 100 South. 87. Writ denied. (100 So.) EGGLESTON v. WILSON et al. (7 Div. 462.) (Supreme Court of Alabama. April 17, 1924.) 1. Partnership 218(3)-Whether defendant was a member of firm and held himself out so as to be liable as such held for jury on conflicting evidence. In an action for goods sold to a firm, whether defendant was a member of the firm, and whether he held himself out so as to subject himself to liability as such, held for jury, where the evidence was conflicting. 2. Trial 260(1)-Refusal of requested charges covered by oral charge not error. Error cannot be predicated on refusal of charges which should have been given, but which were covered by the oral charge. 3. Trial 194(13)-Instruction held erroneous as invading province of jury. In suit for goods sold to a firm, wherein defendant claimed he was not a partner, an instruction to find for plaintiff, if the creditor mailed defendant a statement of the account sued on, which was not returned, or no objection made within a reasonable time, defendant would be bound by it, as an account stated sought to fasten liability on defendant as a matter of law because thereof, and was erroneous as invading province of jury. 4. Partnership 218(2)-In suit for goods sold to firm, refusal of plaintiff's requested charge held erroneous. In an action for goods sold to a firm, wherein defendant claimed not to be a partner, plaintiff's charge, predicated on evidence that, if defendant was to furnish capital in a venture, and another was to furnish labor, and profits were to be divided, that it would make them partners, and defendant would be liable for goods sold to the firm, was not abstract, and, not being fully covered in oral charge, its refusal was erroneous. 8. Partnership 50-Evidence that defendant denying partnership authorized witness to pay debts of partnership held admissible. In an action for goods sold to a firm, wherein defendant claimed he was not a partner, evidence that he had authorized witness to pay firm's debts was admissible as showing his relation thereto. 9. Partnership 49 "Common reputation" inadmissible to establish partnership between individuals. "Common reputation" is not admissible to establish existence of a partnership between individuals. 10. Partnership 37-Necessity of knowledge unnecessary, where personnel of partnership established by independent testimony. If a partnership is established by independent testimony to have been composed of alleged members, necessity of knowledge to enable one dealing with it to hold its members liable is not required, for members are individually liable for partnership debts. 1. Partnership 37-Rule of notice inapplicable, where one dealing with partnership has no opportunity of hearing such notice. Where liability of a partnership is sought to be imposed by estoppel, rule of notice is inapplicable to one dealing with partnership who has no opportunity of hearing of such notice. 12. Partnership 50-Liability not imposed, unless member was dealt with on faith of his partnership connection, and, unless such condition is met, evidence of reputation is inadmissible. One seeking to impose a partnership liability on another because of holding out must have dealt with partnership on faith that other was a member, and, unless that condition is met, evidence of reputation to show a holding out is not admissible. 13. Partnership 50-Matters provable by general reputation stated. Where a partnership liability is shown to 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 community 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 50-Evidence of common 6. Justices of the peace 82 (2)-Refusal to reputation that defendant was regarded as allow witness to contradict statement in re- partner held admissible. turn of service held proper. 5. Trial 194(13)-Charges invading prov- exist by independent testimony, general repuince of jury held properly refused. In an action for goods sold to a firm, wheredefendant claimed he was not a partner, evidence of common reputation in that neighborhood was competent as tending to show that defendant knew that his alleged copartner was holding him out as being a partner. 15. Partnership The court properly refused to receive tes-in timony of witness that he had served a justice court summons on defendant, not shown to have been served by the return, since it was in effect a contradiction of his return or failure thereof as shown by the process. evidence 7. Evidence 179(2)-Secondary Secondary evidence of contents of correspondence was admissible after demand for production and refusal or failure to produce. ex 218(2)-Instruction cluding inference that defendant held himself out as partner held erroneous. In an action for goods sold to a firm, wherein defendant claimed he was not a partner, giving of defendant's requested charge, which excluded inference which might be drawn For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes from evidence that defendant held himself out, the Day & Night Auto Repair Company, your generally as a partner, was erroneous. 16. Partnership 46-Manner of establishing proof of partnership stated. verdict must be in favor of the defendant." "(3) The court charges the jury that the burden of proof is on the plaintiff to reasonably satisfy you from a consideration of all the evidence that Wilson was in fact a partner with Vann; or that he held himself out to the plaintiff as such a partner; and that you cannot 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 plaintiff as a partner of said Vann." George F. Smoot, Judge. Proof of partnership must be made by conduct, control, conversation, or other relevant facts showing relation, or that a person has permitted himself to be treated as a partner. Action on common counts by R, H. Eggleston, as trustee in bankruptcy of the Southern Tire & Accessories Company, against E. W. Wilson, individually, and as a member of the firm of Day & Night Auto Repair Company. Judgment for defendants, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded. Walter S. Smith, of Lineville, for appellant. A. L. Crumpton, of Roanoke, for appellees, THOMAS, J. This is the second appeal. Eggleston v. Wilson, 208 Ala. 167, 94 South. 108. The suit was on account, account stated, etc. It was alleged by way of replication These requested charges were refused to to defendant's pleas that defendant Wilson plaintiff : "(3) If the jury believe the evidence, you must find a verdict for the plaintiff under count 3 of the complaint." "(9) If the jury believe the evidence in this case, you must find a verdict in favor of the plaintiff and against the defendant, E. W. Wilson, individually, and doing business under the firm name and style of Day & Night Auto Repair Company." "(10) I charge you, gentlemen of the jury, that, if you are reasonably satisfied from this evidence that Vann was to furnish the labor, and Wilson was to furnish the capital in the Day & Night Repair Company, and then they two were to divide the profits of the business, if any, that that would make them partners, and Wilson would be liable to plaintiff in this suit for the goods bought by Vann from Southern Tire & Accessories Company." "(15) The jury are instructed that a stated account established prima facie correctness of the items of the account, and, unless this presumption is overcome by proof of mistake or error, it becomes conclusive, and plaintiff is entitled to recover the amount sued for with interest thereon." "(16) The jury are instructed that, if you are reasonably satisfied from the evidence that the Southern Tire & Accessories Company, or its agent, made out a statement of the account sued upon, and mailed it to E. W. Wilson, and the said Wilson retained it, and made no objection within a reasonable time, he will be bound by it as an account stated, and you must find a verdict in favor of plaintiff." These charges were given at defendant's request: held himself out to plaintiff as a partner in the business conducted in the name of Day & Night Auto Repair Company, the purchaser of the merchandise in question, and on said representation plaintiff relied in making sales thereof. De The issues of fact are somewhat similar to those on which the trials were had in Sorrell v. Scheuer, 209 Ala. 268, 96 South. 216, and Tennessee Valley Bank v. Valley View Farm (Ala. Sup.) 97 South. 62. fendant Wilson did not dispute the fact that plaintiff sold the goods in amounts and values claimed to the Day & Night Auto Re pair Company, admitted that "there was no contest as to the indebtedness" of the Auto Repair Company to plaintiff. and that the amount due at the time was $966.21. [1] The evidence being in conflict on the questions (1) whether or not Wilson was a member of said partnership, and (2) whether or not he held himself out in such wise as to subject him to a partnership liability, they are jury questions. Affirmative charges requested by plaintiff were properly refused. McMillan v. Aiken, 205 Ala. 35, 40, 88 South. 135. [2, 3] Refused charges 6 and 7 should have been given. However, they were covered by instructions contained in the oral charge. So, also, were refused charges 11 and 13. Charge 16, requested by plaintiff, was properly refused. It was an invasion of the province of the jury. There was a tendency 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 Autoed, or no objection made within a reasonable Repair Company, or that E. W. Wilson told the time. Such action on Wilson's part, if he salesman of the plaintiff that he was a partner 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 Ala.) EGGLESTON v. WILSON 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 possession of the property at and before the dict against him. attachment, the payment of partnership debts, etc., were competent as evidence. The witness Bell should have been permitted to testify that Wilson authorized him to pay other debts of the partnership. Such evidence tended to shed light on the relations of Wilson and Vann as to the business conducted under the firm name. [4] Plaintiff's refused charge 10 was not abstract. The account on which suit was brought was contracted in October and November, 1919, after plaintiff's salesman visited the place of business of the partnership. That salesman testified that during the month of October, and before the sales were made to the Day & Night Auto Company, he saw C. R. Vann, and the latter represented to him that E. W. Wilson, the defendant, was his partner, doing business under said firm name, and that fact was confirmed by Wilson. The witness said that he "went to see Mr. E. W. Wilson about credits on this goods. He told me that he was to put up all the money and Vann was to be the mechanic and run the place"; and that Wilson would pay for goods purchased by Vann, and further stated or admitted that he was a partner in the business. These inferences of fact may be found in defendant's answers to interrogatories propounded under the statute and offered in evidence; that he (Wilson) was to furnish Vann the "necessary money," and the latter had agreed to pay Wilson onehalf of the amount he (Vann) took in until he paid $1,000. In the refusal of plaintiff's charge 10 reversible error was committed, as it was not fully covered in the oral charge. [5] As has been indicated, a jury question was presented by the conflicting tendencies of evidence that tending to show plaintiff duly addressed and mailed a statement of the account on which the suit is brought and wrote letters to defendant Wilson re questing payment of the indebtedness, and Plaintiff sought to show that by "common repute" or "common report" defendant was regarded as a member of the partnership, In this connection it is pertinent to inquire if defendant's given charges 1 and 3 unduly limited the plaintiff in the nature and degree of proof he might offer under the two issues of fact being tried. [9] The cases in this jurisdiction declare in general terms (1) that, if an actual partnership exists, that fact is sufficient to charge its members with a partnership liability, without regard to what may have been the reputation or common report in that community as to whether or not a designated person was a partner therein; and (2) that, where it is sought to impose a partnership liability by way of an estoppel, the party sought to be subjected to such liability (A) must have "held himself out as a partner," and (B) he who seeks to so hold that other liable for holding himself out as a partner must have dealt with the partnership upon the faith of such other person being a member thereof. It follows that "common reputation" is not admissible to establish the existence of a partnership between indi viduals. V. Carter, Hogan & Plowman Douglass, 2 Ala. 499, Clark v. Taylor, 68 Ala. 453, and Humes v. O'Bryan & Washington, 74 Ala. 64, 81, were actions against an al30 Cyc. 407. leged partnership on account. Cont. R. & B. Co. v. Smith, 76 Ala. 572, 52 Am. Rep. 353, was an action against an alleged partnership for negligence in operating a boat; Knard v. Hill, 102 Ala. 570, 574, 15 South. 345, an action for damages against individuals alleged to have been members of the partnership charged with negligence; Weil Bros. v. Hanks, 201 Ala. 39, 77 South. 333, an action for damages for breach of contract by an alleged partnership in the sale of cotton. In Lewis v. Post & Main, 1 Ala. 74, Marble & Son v. Lypes & Co., 82 Ala. 322, 2 South. 701, and Tanner & De Laney Eng. Co. v. Hall, 86 Ala, 305, 5 South. 584, holdings were that the evidence was inadmissible against one sued as a partner when he has The same announce denied that fact, etc. [7, 8] After the demand for production of ment of the rule of evidence is contained in the influence of the "common repute" in that neighborhood as to the conduct of business by the alleged partners. Humes v. O'Bryan & Washington, 74 Ala. 64, 81; Cent. R. & B. Co. v. Smith, 76 Ala. 572, 578, 52 Am. Rep. 353; Guin v. Grasselli Chem. Co., 197 Ala. 117, 72 South. 413; McAleer v. People's Bank, 202 Ala. 256, 259, 80 South. 94. 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, etc., Co. v. McPeters, 124 Ala. 451, 27 South. 518 (action on account against an alleged surviving member of a partnership, and the plea was set-off); Owensboro Wagon Co. v Bliss, 132 Ala, 253, 260, 31 South. 81, 90 Am. St. Rep. 907 (common counts against alleged partners and pleas denied the existence of the partnership and sought to set up a corporate existence, or de facto corporate operation thereof). These three cases last cited are said to contain dicta on this rule of evidence. It is unnecessary to decide whether the same was dicta. 30 Cyc. 407; L. R. A. 1918D, 505, 506. In Guin v. Grasselli Chem. Co., 197 Ala. 117, 72 South, 413 (suit in assumpsit, and plea of non est factum), it is declared that "the existence of partnership cannot be proved by general repute; yet, when the fact is otherwise established, general notoriety in the neighborhood may be proved as competent evidence, to charge a resident in such community with knowledge of it." And in Reeves v. Jordan, 197 Ala, 64, 70, 72 South. 322, 325, the declaration is contained: "In reaching this conclusion we have given careful attention and study to only the legal evidence in the case, leaving out of view the testimony of those witnesses who testified only as to their general understanding or opinion concerning the partnership." [12, 13] It is then established by this court "that one seeking to impose a partnership liability upon another because of so holding out shall have dealt with the partnership (1) upon the faith that the other was a member” (Marble & Son v. Lypes & Co., 82 Ala. 322, 2 South. 701; Tanner & De Laney Eng. Co. v. Hall, 86 Ala. 305, 5 South. 584; Knard v. Hill, 102 Ala. 570, 15 South. 345); (2) unless "that condition is met, there is no question as to the admissibility of evidence of reputation to show a holding out" (Knard v. Hill, 102 Ala. 570, 574, 15 South, 345, 347; Tanner & De Laney Eng. Co. v. Hall, 86 Ala. 305, 5 South. 584; Meharg Liquor Co. v Davis, 189 Ala. 483, 66 South. 576; Marble & Son v. Lypes & Co., 82 Ala. 322, 2 South. 701); (3) that, where a partnership liability is shown to exist by independent testimony, it is then competent to prove general reputation in order to impute a probable knowledge to (A) the alleged partner residing in the 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 is shown to exist by independent testimony, it is then competent to prove a general reputation or common report of its existence, in order to impute a probable knowledge of such fact to a plaintiff," and that "for a like purpose, the notoriety of a dissolution may be shown to charge one with notice of such fact," and that "perhaps the same rule might apply, as contended, to the nonexistence of a partnership," were no doubt referring to a "partnership liability" by way of an estoppel (Weil Bros. v. Hanks, 201 Ala. 39, 77 South, 333; Meharg Liquor Co. v. Davis, 189 Ala. 483, 66 South. 576; Marble & Son v. Lypes & Co., 82 Aka. 322, 2 South. 701), and not to the liability imposed by law upon a partner (L. R. A. 1918D, 511, note). Therefore, where the liability is sought to be imposed by way of an estoppel, this rule of notice does not apply to one dealing with [14] Evidence of common reputation in that neighborhood (1) was not competent evidence to show that plaintiff (not of that community) had notice of the members of the partnership, but (2) was competent as tending to show that defendant knew that Vann was holding him out as being a partner. There was reversible error in the exclusion of the evidence. [15] The tendencies of the evidence before the jury were threefold, viz.: (1) That defendant Wilson was a partner in said firm before and at the time the credit was extended it by plaintiff; (2) that defendant held himself out generally as a partner with a knowledge of the fact that the partnership was being dealt with on the faith of his being a member; and (3) that defendant so acted, and that statements made by him to plaintiff's salesman, with reference to the particular sales to be made to the partnership, |