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opponent, since the partnership property was, (N. S.) 567; Purdy v. Hood, 5 Mart. (N. mortgaged to secure said indebtedness, and S.) 626; Claiborne v. Their Creditors, 18 the loan could have been effected as easily La. 501 ; Mourain v. Delamarre, 2 La. Ann, with Colbert retaining his interest in the 142. partnership as it was subsequently effected We quote the following from the Succesafter he had retired therefrom. The fact sion of Pilcher, 39 La, Ann. 362, 1 So. 929. that Colbert received $1,700 for his interest

"A partnership once formed and put into in the partnership cannot be considered as action becomes, in contemplation of law, a determining his interest in each specific piece moral being, distinct from the persons who of property owned by the partnership. It compose it.

The partners are not the amounts to nothing more than the tangible owners of partnership property. It belongs to expression on the part of his partners of the ideal being which has the control and adthe sum they were willing to pay to have ministration thereof to enable it to fulfill its him retire from the business. Non constat legal duties and obligations. The partners

own the residuum." if the partnership had been liquidated at

(Writer's italics.) the time of the sale, it would have proven

See, also, Perry v Holloway, 6 La. Ann. to be insolvent, and Colbert would have had 265; and Liquidating Com’rs of Bank of no interest whatever therein. Again, the Monroe v. Dodson, 131 La. 990, 60 So. 659, sale by Colbert to his vendees did not relieve wherein this court said: him, so far as the partnership creditors were concerned, of his obligations to them.

"The transfer by a partner of his half in

terest in assets belonging to a partnership is [5] It is immaterial if the partnership

a transfer of his interest therein, as may apdebts were paid after the sale from the pro- pear on a settlement with his copartners.” ceeds of the mortgages executed in favor of opponent. The question of the vendor's lien, It is our conclusion that the sale by Colvel non, must be determined as of the time bert to his copartners was the sale of an unof the sale. At that date neither Colbert liquidated interest in an unliquidated partnor his partners owned any fixed interest nership, and that, therefore, plaintiff's note in the partnership property which was in evidencing a deferred payment on the purcumbered with debts. They only owned the chase price thereof is not secured by a venresiduum, whatever that might be, after dor's lien on specific articles or pieces of the payment of the debts.

partnership property. In Gridley v. Conner, 2 La. Ann. at page For the reasons assigned, the judgments of 90, this court said:

the district court and of the Court of Appeal "Our own Code makes provisions for cases

are annulled and set aside, and it is now orof this kind (liquidation of partnerships). The dered that there be judgment in favor of rules concerning the partition of inheritances, third opponent, George C. Vaughan & Sons, the manner of making them, and the obligations Inc., and against the Little Pine Lumber Comwhich result between heirs, apply to partners. pany and the partners thereof, J. W. Stell Civil Code, art. 2861.

and L. R. Baker, and against Isaac Posner, "The first step to be taken towards the completion of a partition is the settlement of the plaintiff herein, recognizing said third opamount which each of the heirs owes the suc- ponent as mortgagee of the said property cession, and of the amount which he is bound described in the certified copies of the acts to collate; and where there is to be a final liq-attached to the petition of intervention and uidation and settlement of a succession or part-third opposition, and that as such its rights nership, it is obvious that the result cannot be

as such mortgagee be recognized and eneffected without a payment of the debts, or, forced in preference and priority over the in a succession, by a division of the debts among claims of all other persons whomsoever, and the heirs.

The debts due by commercial partnerships particularly the said Isaac Posner, rejectare indivisible, as the partners are bound in ing the said Isaac Posner's demand for vensolido; the debts must therefore be paid. dor's lien and privilege, and directing the

sheriff of the parish of Rapides to pay over “When the creditors shall have been paid, it to said George C. Vaughan & Sons, Inc., will be his [liquidating partner's] duty to di-third opponent, the sum of $180.20 depositvide the residue, if any remain, among the ed in his hands, in accordance with the partners under the direction of the court, in accordance with the articles of partnership, agreement of the parties and referred to in and their respective interests in the fund.” the petition of the third opponent, said (Writer's italics.)

amount to be credited on the mortgage in

debtedness due to the said third opponent by [6] On the legal proposition that the debts the said Little Pine Lumber Company as must be paid before the partners can divide shown by the acts, contracts, notes, and the property, that the assets belong to no mortgages attached to the petition of said partner separately, but are a common stock opponent. Plaintiff, Isaac Posner, to pay all pledged for the debts of the partnership, see costs. Ward v. Brandt, 11 Mart. (O. S.) 331, 13 Am. Dec. 352; United States v. Baulos, 5 Mart. OVERTON, J., recused.

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(102 So.)

tical, and improper, where relevancy was not BURCH V. INGHAM LUMBER CO.

established. (2 Div. 841.)

Appeal from Circuit Court, Greene Coun(Supreme Court of Alabama. Oct. 23, 1924.

ty; Fleetwood Rice, Judge. Rehearing Denied Nov. 27, 1924.)

Action by S. J. Burch against the Ingham 1. Pleading mill-Ruling of judge on plain. Lumber Company. Judgment for defendant,

tiff's burden of proving validity of service on and plaintiff appeals. Affirmed. officer of foreign corporation held not objectionable, as shifting burden of proof on The plaintiff sued the defendant, "the Ingplea in abatement.

ham Lumber Company, a corporation," for Burden of proof on plea to jurisdiction is breach of an alleged contract for the sale on defendant, and where defendant foreign cor- and delivery of lumber by defendant to plainporation, on such plea, presented evidence tend- tiff; the suit being filed in the circuit court ing to overcome prima facie case made by sher

of Greene county The sheriff's return on iff's return of process, served on corporation's officer under Acts 1915, p. 607, court's state the summons and complaint is: ment to plaintiff's counsel that the burden was "Executed by serving a copy of the within on plaintiff "as to showing validity of your serv on W. F. Ingham, an officer of Ingham Lumice, as to jurisdiction," did not impose improp- ber Company, Incorporated, this 14th day of er burden on plaintiff, but merely stated that May, 1924." prima facie effect of sheriff's return was overcome, and his original burden in that respect The defendant corporation appeared spehad been revived.

cially, by its attorney, and filed a plea to 2. Corporations Om633-Evidence held to show the jurisdiction, setting up: defendant was foreign corporation,

“That at the time this action was commenced, Evidence on plea to jurisdiction held to and at the time of service of summons and show that defendant was foreign corporation, complaint, it was a foreign corporation having with domicile in Missouri, notwithstanding ab- its domicile in the state of Missouri, and that sence of direct evidence that it was organized | (at said times) it was not doing business by under Missouri laws.

agent in Greene county, Alabama." 3. Corporations ww668(7)–Service on officer

of corporation unofficially within state in. Demurrer to this plea being overruled, valid.

issue was joined thereon, and the court, sitService of process on president of foreign ting without a jury, rendered judgment for corporation, in state for personal reasons, and defendant on the plea. Plaintiff appeals, not for transacting corporation's business, held and assigns for error the rendition of the invalid.

judgment and several rulings on the evi4. Evidence 147 Negative testimony | dence, which are stated in the opinion. proper, where fact provable in no other way.

Hildreth & Hildreth, of Eutaw, and R. B. In a suit against a foreign corporation it Evins, of Birmingham, for appellant. was proper for witness to testify as to his

J. F. Aldridge, of Eutaw, for appellee. acquaintance with its business and that it had not at any time an agent in county in question, as this was a negative fact, provable in no SOMERVILLE, J. The chief contentions other way.

of appellant, presented as a basis for the 5. Corporations en 432(8)—Agency not prova impeachment of the judgment below, are (1) ble by statements of alleged agent.

that the burden of proving every material Statements of alleged agent of corporation, allegation of its plea to the jurisdiction in absence of proof of authority, are not ad- rested upon the defendant; (2) that the almissible to show agency.

jegations that it was a foreign corporation, 6. Evidence 67(1)-That one was agent of and had its domicile in the state of Missouri,

foreign corporation at certain time not evi. are made material by their incorporation in dence of agency more than year later. the plea; and (3) that these allegations were

That one was agent of foreign corporation uot supported by any evidence before the at certain time is not evidence that he was court. agent more than year later.

[1] The first proposition is undoubtedly 7. Corporations en 665(4)-Location of cor correct, and the trial court so stated and

poration's principal place of business relevant ruled. At a later stage of the trial, after to issues on its plea to jurisdiction.

the reception of testimony tending to show Fact that defendant corporation's principal that W. F. Ingham, upon whom the process place of business was in another state held rel- was served as an officer of the defendant evant to issues made by plea to jurisdiction.

corporation was a resident of Missouri, that 8. Evidence Om 368(3)-Motion to compel pro- the corporation's principal place of busiduction of mass of correspondence held too ness had been in Kansas City, Mo., for 20 broad, and relevancy held not shown.

years or more, that it had no agent in Greene Motion to compel witness to produce sever-county, Ala., and was not doing business al thousand letters held too broad to be prac- | therein, before or at the time of the filing

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

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of the suit, or the serving of the summons, no authority therefor. Haas-Phillips Prod.
and that W. F Ingham was not acting as uce Co. v. Lee & Edwards, 205 Ala. 137,
an agent for the corporation in the transac- 87 So. 200, citing Riverside Mills v. Mene-
tion of any of its corporate business while fee, 237 U. S. 189, 35 S. Ct 579, 59 L. Ed.
he was in Greene county, and when he was 910. This principle condemns as ineffective
there served with process, the presiding the service of process in this case on W. F.
judge stated to counsel for plaintiff that the Ingham, who, though presiden“ of the de-
burden was on plaintiff "as to showing the fendant corporation, was in Alabama and
validity of your service, as to the jurisdic- Greene county for personal reasons, and not
tion of the court.” We do not understand for the purpose of transacting any business
from this that the court intended to place for the corporation, as the evidence must
upon plaintiff the burden of disproving de- be held to show.
fendant's special plea, but only to say that [4] It was proper for the witness Burnett
the prima facie effect of the sheriff's return, to testify to his acquaintance with the de-
showing the execution of the process on an fendant company's business, and that it had
officer of the defendant corporation (Acts not at any time had an agent in Greene
1915, p. 607), had been overcome, and that county for the transaction of its corporate
the original burden in that behalf had been business. This was a negative fact, which
revived. See Code 1907, § 5303; Hoffman could be proved in no other way than by
v. Ala. Distillery Co., 124 Ala. 542, 27 So. such a negation for, ostensibly, there were
485. That burden is imposed and exists, no facts for the witness to state, but simply
irrespective of a special plea to the jurisdic- an absence of facts—a case very different
tion.

from the affirmative proof of an existing
[2] Conceding, without deciding, that de- agency:
fendant was not entitled to judgment on its (5, 6] Burnett's conversations with plain-
plea to the jurisdiction, without proof that tiff, in the absence of authority from defend-
it was a foreign corporation with a domicile ant, were not competent to show that he was
in Missouri, we think that the evidence be- the agent of defendant. The question of
fore the court fairly justified that conclusion breach of the contract vel non was not em-
as an inference of fact, though there was no braced within the issue. Nor, in any event,
direct evidence that the corporation was would the fact that Burnett, in the fall of
organized under the laws of Missouri. In a 1922, assisted both parties in their negotia-
legal sense a corporation can have but one tions for a purchase and sale of timber, be
domicile, and that is “the county or district evidence that Burnett was "doing business"
within the state of its creation, where its as agent for defendant when this suit was
principal office and place of business is sit filed in February, 1924. See Int. C. S. Oil
uated." 14a Corp. Jur. 791, 88 2876, 2877, Co. v. Wheelock, 124 Ala. 367, 371, 27 So.
2881; Id. 1226, 8 3933; Bergner, etc., Co. v. 517.
Dreyfus, 172 Mass. 154, 51 N. E. 531, 532, [7] The fact that defendant's principal
70 Am. St. Rep. 251, 14 Corp. Jur. 338, 8 place of business was in Kansas City, Mo.,
416.

was relevant to the issues made by the plea, The evidence shows that defendant's prin- and was properly admitted. So, also, was cipal place of business has been located in the fact that the president and treasurer Kansas City, Mo., for 20 years, that all of of the corporation lived at that place, though their business, from everywhere, was through it was a mere circumstance, of little weight that office, that no principal place of busi- in itself. ness had been maintained at any other place, [8] The plaintiff introduced in evidence a and that the president and the treasurer of number of letters that passed between Burthe company resided there. All this is, of rett and defendant, and himself and defend. course, consistent with the existence of a ant, relating to the alleged transaction for technical legal domicile elsewhere; but, in breach of which he is suing, most of them view of the character of this corporation and being produced and identified by Burnett. On of its business, it may, in the absence of cross-examination Burnett testified that he countervailing proof, be fairly presumed to had in his files 3,000 or 4,000 additional letbe a Missouri corporation. We think the ters, the “general correspondence" between evidence is conclusive that defendant had defendant corporation and his own, the Ing. no agent in Greene county doing business ham-Burnett Lumber Company. Plaintiff for it at the time the suit was filed and moved for an order from the court to comprocess served. Int. C. S. Oil Co. v. Wheel- pel the production of this entire correspondock, 124 Ala. 367, 371, 27 So, 517.

ence for inspection at the trial. Manifestly, [3] So, under the authorities, valid service this motion was too broad for any practica! of local process cannot be made on a foreign purpose. Nor would it have been proper to corporation by serving it on its officer or require the witness to bring into court such agent, who comes within the borders of the a mass of correspondence, the relevancy of state with no purpose of transacting any which was not even suggested. business for the corporation, and vested with We have examined all of the assignments

.

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(102 So.) of error, and do not find any to justify: a, 7. Pleading Om 129(5)-in action by individual reversal of the judgment, which will there no error in admitting contracts to plaintiff fore be affirmed.

in name of company, if contract undisputed. · Affirmed.

Court did not err in admitting in evidence

two contracts signed by defendant, payable to ANDERSON, C. J., and THOMAS and his individual name, where there was no plea

plaintiff in name of company, but sued on in BOULDIN, JJ., concur.

denying their execution.
8. Evidence 469—Allowing plaintiff to tes-

tify to amount of back payments due him,
when goods were repossessed, held not con.
trary to written sale contract.

Where written contracts of sale provided SMITH V. LEWIS, (6 Div. 224.) that, should goods be repossessed, all install

ments due at repossession should be paid by (Supreme Court of Alabama. Oct. 16, 1924. buyer, and on repossession vendee again oralRehearing Denied Nov. 20, 1924.)

ly agreed to pay such back installments, ven

dor's testimony as to amount thereof did not 1. Dismissal and nonsuit 44-Pleading contradict the writing.

87, 193(1)—Motion in circuit court to dismiss 9. Appeal and error om 901-Overruling moappealed case not proper mode of presenting

tion by defendant to retax cost presumed cordefensive matter; demurrer or plea being

rect, unless affirmatively shown otherwise. necessary. A motion in circuit court to dismiss suit show that cost items should not be taxed

Where defendant does not affirmatively and cancel judgment of an inferior court from against him, order overruling his motion to which appeal was taken because suit was based have same retaxed is presumed correct. on suit or vendor's lien, and plaintiff before suit had repossessed his property, having re

Appeal from Circuit Court, Jefferson Countained title until purchase price was paid, was properly overruled; demurrer or plea being ty; J. C. B. Gwin, Judge. proper procedure.

Suit by E. D. Lewis against Jack Smith. 2. Ploading 208 Demurrer should state Judgment for plaintiff, and defendant ap

grounds therefor, otherwise court not put in peals. Transferred from Court of Appeals error for overruling it.

under section 6, page 449, Acts 1911. Af. Under Code 1907, 8 5340, demurrer to a firmed. count in a complaint should specify defect, and

Pinkney Scott, of Bessemer, for appellant. when it does not, or the ground is general,

Benton & Bentley, of Bessemer, for appelcourt will not be placed in error for overrul

lee, ing it. 3. Appeal and error w242(3) Appellate

MILLER, J. This is a suit of E. D. Lewcourt cannot review or pass on demurrers is, trading and 'doing business under the upon which trial court did not rule.

name of E. D. Lewis Furniture Company, Where trial court makes no rulings on de- against Jack Smith to recover the sum of murrers directed against certain counts in a complaint, an appellate court cannot review $48 due under two conditional sale contracts and pass on the demurrers.

for household and kitchen furniture, execut,

ed by him. The case was tried by the cir. 4. Sales m479(15)-Pleas to complaint by cuit court without a jury on appeal or certiconditional seller for installments falling due orari from the inferior court of Bessemer. before repossession held bad on demurrer.

The court found from the evidence that the In action by conditional vendor to recover defendant owed plaintiff $48 on the conback installments under contract that provided that, on taking repossession of goods, buyer tracts, and rendered judgment accordingly. should be liable for back installments, latter's This appeal is prosecuted by the defendant pleas that vendor bad rescinded sale and re- from that judgment. possessed property held bad on demurrer.

[1] The defendant filed a motion to dis5. Pleading 208 Demurrer not stating

miss the suit and cancel the judgment of the grounds therefor properly overruled.

inferior court, because the suit is based on a Where demurrers to pleas were general, note or vendor's lien for furniture, which not specifying the defects as Code 1907, $ 5340, plaintiff before commencing this suit took directs, they should have been overruled. possession of as his property, the furniture 6. Appeal and error Om 1040 (7)-Sustaining

the sole consideration of the note, demurrer to plea will not work a reversal of wherein plaintiff retained title until purjudgment where case tried without jury, and chase price was paid; and that plaintiff defendant's case presented under general is- thereby elected and executed his remedy and

rights against the defendant. The trial Error in sustaining demurrers to plea will court refused to hear testimony on this monot work reversal of judgment of trial court, tion and overruled it, and in this there was where case was tried without jury, and defendant received the benefit of his pleas by no error. The matters set up in the motion evidence under general issue.

are in their nature defensive. It was under For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

was

sue,

these circumstances incumbent on the de-, aver there were two contracts. The demur. fendant to demur or plead to the complaint. rers to these pleas were general, did not Montgomery Iron Works v Smith, 98 Ala. specify the defects as the statute (section 644, 13 So. 525, Alexander v. Mobile Auto 5340) directs, and they should have been Co., 200 Ala, 586, 76 So. 944.

overruled by the court. Section 5340, Code [2, 3] There are six counts in the com- 1907, and authorities supra. This error will plaint, designated as 1, A, B, B12, C, and D. not work a reversal of the judgment because The defendant demurred to each of them. the case was tried without a jury, and de The court sustained demurrers to counts A, i fendant received the benefit of this evidence B, and C, and overruled them as to D. mentioned in the pleas under the general isCount D may be demurrable, but it was not sue; and. under the undisputed evidence, subject to the grounds of demurrer assigned the plaintiff was entitled to recover the sum to it. The grounds of demurrer should spec- of $48, the amount of the judgment in this ify the defect in the count. When it does case, The defendant was not injured by the not, or the ground is general, the court will error. It did not injuriously affect his subnot be placed in error for overruling it. Sec- stantial rights. Ryall v Allen, 143 Ala. 222, tion 5340, Code 1907; Ryall v Allen, 143 38 So. 851; rule 45, 175 Ala. xxi; 2 May. Ala. 222, 38 So 851; Wikle v Johnson, 132 field's Dig. 176–178. Ala. 268, 31 So. 715; Morris v Beall, 85 Ala. (7 8] The court did not err in admitting 598, 5 So. 252. We find no ruling of the in evidence the two contracts signed by the court on demurrers of defendant to counts defendant payable to the plaintiff under the 1 and B12, and we cannot review and pass name of E. D. Lewis Furniture Company. on these demurrers.

There was no plea denying their execution. Count 1 claims of defendant the sum of There was evidence that “they were the con$48 due by note made by the defendant and tracts and executed by the defendant," and $10 reasonable attorney's fee secured by it, they conformed to the description of them which he agreed to pay

in counts B42 and D. The court did not err Count B42 claims $48 damages for the in allowing plaintiff to testify as to the breach of two contracts entered into by de amount paid by defendant to him on the fendant dated October 9 and 20, 1924, re- contracts and the agreement between them spectively, by which defendant agreed to pay when the property was returned. It was $5 per two weeks from their dates for fur- not contrary to, but the same as, the written niture until the entire purchase price was agreements. The evidence without dispute paid; and it was agreed therein, in the

showed plaintiff sold defendant household event the furniture was returned before full and kitchen furniture at two different times payment was made, the defendant would make all back payments due thereon; and for which he executed two contracts. The it avers the defendant failed to make paycontract was $156.50, and under the other

purchase price of the furniture under one ment of the sum of $48 due under said con

was $37.50. It was to be paid for under tract as he agreed to do.

Count D is practically the same as count each contract at $5 per two weeks until the B4, except it states the purchase price of ed in its body that the property and the title

same was paid in full. Each contract statthe furniture under one contract was $156.50, and under the other was $37.50, and it to it shall be and remain the property of E.

D. Lewis Furniture Company until fully paid does not aver that defendant agreed, “in

for as above shown. Each contract conevent the furniture was returned to plaintiff tained this covenant by the defendant: before fully paid, that defendant would make all back payments."

"And if I neglect to pay said weekly or The defendant filed three pleas, numbered monthly installments when due [time being the 1, 2, and 3, to these counts. Plea 1 was gen- essence of the contract), said E. D. Lewis Fureral issue. Demurrers of plaintiff to pleas niture Company, or their agents, shall have 2 and 3 were sustained by the court.

the right and privilege to enter my premises [4-6] Pleas 2 and 3 are practically the at any time thereafter to demand and take

away their said property, and I agree to forsame. They aver the contract referred to in feit and lose all previous payments made therethe complaint was for furniture sold by on, the same being treated as rents. I further plaintiff to defendant to be paid in install- agree to make all back payments in case goods ments; that after defendant had paid nu are returned.” merous installments embraced therein the plaintiff “rescinded said contract and repos The total amount paid by the defendant sessed the furniture embraced in it, and the under both contracts aggregated the sum of contract fails of consideration." These pleas $39. The defendant and his wife separated, are defective. We need not mention them. and he sent for the plaintiff to come and get See Wellden v. Witt, 145 Ala. 605, 40 So. the furniture, and told him to go and get the 126; Givhan v. Dailey, 4 Ala. 336; 3 Michie goods, and he would pay the back payments Dig. (Contracts) 360, 88 179–191. The pleas all up to the time of taking the furniture refer to one contract, and counts D and B4% back from him; and the plaintiff then took

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