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We quote the following from the Succession of Pilcher, 39 La. Ann. 362, 1 So. 929. "A partnership once formed and put into action becomes, in contemplation of law, a moral being, distinct from the persons who compose it. The partners are not the owners of partnership property. It belongs to the ideal being which has the control and administration thereof to enable it to fulfill its The partners legal duties and obligations. (Writer's italics.)

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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 after he had retired therefrom. The fact that Colbert received $1,700 for his interest in the partnership cannot be considered as determining his interest in each specific piece of property owned by the partnership. It amounts to nothing more than the tangible expression on the part of his partners of the sum they were willing to pay to have him retire from the business. Non constat if the partnership had been liquidated at the time of the sale, it would have proven to be insolvent, and Colbert would have had no interest whatever therein. Again, the sale by Colbert to his vendees did not relieve him, so far as the partnership creditors were concerned, of his obligations to them.

[5] It is immaterial if the partnership debts were paid after the sale from the proceeds of the mortgages executed in favor of opponent. The question of the vendor's lien, vel non, must be determined as of the time of the sale. At that date neither Colbert nor his partners owned any fixed interest in the partnership property which was incumbered with debts. They only owned the residuum, whatever that might be, after the payment of the debts.

In Gridley v. Conner, 2 La. Ann. at page 90, this court said:

"Our own Code makes provisions for cases of this kind [liquidation of partnerships]. The rules concerning the partition of inheritances, the manner of making them, and the obligations which result between heirs, apply to partners. Civil Code, art. 2861.

own the residuum."

See, also, Perry v Holloway, 6 La. Ann. 265; and Liquidating Com'rs of Bank of Monroe v. Dodson, 131 La. 990, 60 So. 659, wherein this court said:

"The transfer by a partner of his half interest in assets belonging to a partnership is a transfer of his interest therein, as may appear on a settlement with his copartners."

It is our conclusion that the sale by Colbert to his copartners was the sale of an unliquidated interest in an unliquidated partnership, and that, therefore, plaintiff's note evidencing a deferred payment on the purchase price thereof is not secured by a vendor's lien on specific articles or pieces of partnership property.

For the reasons assigned, the judgments of the district court and of the Court of Appeal are annulled and set aside, and it is now ordered that there be judgment in favor of third opponent, George C. Vaughan & Sons, Inc., and against the Little Pine Lumber Company and the partners thereof, J. W. Stell and L. R. Baker, and against Isaac Posner, plaintiff herein, recognizing said third opponent as mortgagee of the said property described in the certified copies of the acts attached to the petition of intervention and

"The first step to be taken towards the completion of a partition is the settlement of the amount which each of the heirs owes the succession, and of the amount which he is bound to collate; and where there is to be a final liquidation and settlement of a succession or part-third opposition, and that as such its rights nership, it is obvious that the result cannot be effected without a payment of the debts, or, in a succession, by a division of the debts among

the heirs.

"The debts due by commercial partnerships are indivisible, as the partners are bound in solido; the debts must therefore be paid.

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"When the creditors shall have been paid, it will be his [liquidating partner's] duty to divide the residue, if any remain, among the partners under the direction of the court, in accordance with the articles of partnership, and their respective interests in the fund." (Writer's italics.)

[6] On the legal proposition that the debts must be paid before the partners can divide the property, that the assets belong to no partner separately, but are a common stock pledged for the debts of the partnership, see Ward v. Brandt, 11 Mart. (O. S.) 331, 13 Am.

as such mortgagee be recognized and enforced in preference and priority over the claims of all other persons whomsoever, and particularly the said Isaac Posner, rejecting the said Isaac Posner's demand for vendor's lien and privilege, and directing the sheriff of the parish of Rapides to pay over to said George C. Vaughan & Sons, Inc., third opponent, the sum of $480.20 deposited in his hands, in accordance with the agreement of the parties and referred to in the petition of the third opponent, said amount to be credited on the mortgage indebtedness due to the said third opponent by the said Little Pine Lumber Company as shown by the acts, contracts, notes, and mortgages attached to the petition of said opponent. Plaintiff, Isaac Posner, to pay all costs.

(102 So.)

BURCH v. INGHAM LUMBER CO. (2 Div. 841.)

(Supreme Court of Alabama. Oct. 23, 1924. Rehearing Denied Nov. 27, 1924.)

1. Pleading 11-Ruling of judge on plaintiff's burden of proving validity of service on officer of foreign corporation held not objectionable, as shifting burden of proof on plea in abatement.

Burden of proof on plea to jurisdiction is on defendant, and where defendant foreign corporation, on such plea, presented evidence tending to overcome prima facie case made by sheriff's return of process, served on corporation's officer under Acts 1915, p. 607, court's statement to plaintiff's counsel that the burden was on plaintiff "as to showing validity of your service, as to jurisdiction," did not impose improper burden on plaintiff, but merely stated that prima facie effect of sheriff's return was overcome, and his original burden in that respect had been revived.

tical, and improper, where relevancy was not established.

Appeal from Circuit Court, Greene County; Fleetwood Rice, Judge.

Action by S. J. Burch against the Ingham Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The plaintiff sued the defendant, "the Ingham Lumber Company, a corporation," for breach of an alleged contract for the sale and delivery of lumber by defendant to plaintiff; the, suit being filed in the circuit court of Greene county The sheriff's return on the summons and complaint is:

"Executed by serving a copy of the within on W. F. Ingham, an officer of Ingham Lumber Company, Incorporated, this 14th day of May, 1924."

The defendant corporation appeared specially, by its attorney, and filed a plea to 633-Evidence held to show the jurisdiction, setting up: defendant was foreign corporation.

2. Corporations

Evidence on plea to jurisdiction held to show that defendant was foreign corporation, with domicile in Missouri, notwithstanding absence of direct evidence that it was organized under Missouri laws.

3. Corporations 668 (7)-Service on officer of corporation unofficially within state invalid.

Service of process on president of foreign | corporation, in state for personal reasons, and not for transacting corporation's business, held invalid.

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"That at the time this action was commenced, and at the time of service of summons and complaint, it was a foreign corporation having its domicile in the state of Missouri, and that [at said times] it was not doing business by agent in Greene county, Alabama."

Demurrer to this plea being overruled, issue was joined thereon, and the court, sitting without a jury, rendered judgment for defendant on the plea. Plaintiff appeals, and assigns for error the rendition of the judgment and several rulings on the evidence, which are stated in the opinion.

Hildreth & Hildreth, of Eutaw, and R. B.
Evins, of Birmingham, for appellant.
J. F. Aldridge, of Eutaw, for appellee.

SOMERVILLE, J. The chief contentions of appellant, presented as a basis for the

5. Corporations 432 (8)-Agency not prova- impeachment of the judgment below, are (1) ble by statements of alleged agent.

Statements of alleged agent of corporation, in absence of proof of authority, are not admissible to show agency.

6. Evidence 67(1)-That one was agent of foreign corporation at certain time not evidence of agency more than year later.

That one was agent of foreign corporation at certain time is not evidence that he was agent more than year later.

7. Corporations 665 (4)-Location of corporation's principal place of business relevant to issues on its plea to jurisdiction.

Fact that defendant corporation's principal place of business was in another state held relevant to issues made by plea to jurisdiction. 8. Evidence 368 (3)-Motion to compel production of mass of correspondence held too broad, and relevancy held not shown.

Motion to compel witness to produce several thousand letters held too broad to be prac

that the burden of proving every material allegation of its plea to the jurisdiction rested upon the defendant; (2) that the allegations that it was a foreign corporation, and had its domicile in the state of Missouri, are made material by their incorporation in the plea; and (3) that these allegations were not supported by any evidence before the court.

[1] The first proposition is undoubtedly correct, and the trial court so stated and ruled. At a later stage of the trial, after the reception of testimony tending to show that W. F. Ingham, upon whom the process was served as an officer of the defendant corporation was a resident of Missouri, that the corporation's principal place of business had been in Kansas City, Mo., for 20 years or more, that it had no agent in Greene county, Ala., and was not doing business 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

uce Co. v. Lee & Edwards, 205 Ala. 137, 87 So. 200, citing Riverside Mills v. Menefee, 237 U. S. 189, 35 S. Ct 579, 59 L. Ed. 910. This principle condemns as ineffective the service of process in this case on W. F. Ingham, who, though president of the defendant corporation, was in Alabama and Greene county for personal reasons, and not for the purpose of transacting any business for the corporation, as the evidence must be held to show.

of the suit, or the serving of the summons, no authority therefor. Haas-Phillips Prodand that W. F Ingham was not acting as an agent for the corporation in the transaction of any of its corporate business while he was in Greene county, and when he was there served with process, the presiding judge stated to counsel for plaintiff that the burden was on plaintiff "as to showing the validity of your service, as to the jurisdiction of the court." We do not understand from this that the court intended to place upon plaintiff the burden of disproving defendant's special plea, but only to say that the prima facie effect of the sheriff's return, showing the execution of the process on an officer of the defendant corporation (Acts 1915, p. 607), had been overcome, and that the original burden in that behalf had been revived. See Code 1907, § 5303; Hoffman v. Ala. Distillery Co., 124 Ala. 542, 27 So. 485. That burden is imposed and exists, irrespective of a special plea to the jurisdiction.

[2] Conceding, without deciding, that defendant was not entitled to judgment on its plea to the jurisdiction, without proof that it was a foreign corporation with a domicile in Missouri, we think that the evidence before the court fairly justified that conclusion as an inference of fact, though there was no direct evidence that the corporation was organized under the laws of Missouri. In a legal sense a corporation can have but one domicile, and that is "the county or district within the state of its creation, where its principal office and place of business is situated." 14a Corp. Jur. 791, §§ 2876, 2877, 2881; Id. 1226, § 3933; Bergner, etc., Co. v. Dreyfus, 172 Mass. 154, 51 N. E. 531, 532, 70 Am. St. Rep. 251, 14 Corp. Jur. 338, § 416.

The evidence shows that defendant's principal place of business has been located in Kansas City, Mo., for 20 years, that all of their business, from everywhere, was through that office, that no principal place of business had been maintained at any other place, and that the president and the treasurer of the company resided there. All this is, of course, consistent with the existence of a technical legal domicile elsewhere; but, in view of the character of this corporation and of its business, it may, in the absence of countervailing proof, be fairly presumed to be a Missouri corporation. We think the evidence is conclusive that defendant had O agent in Greene county doing business for it at the time the suit was filed and process served. Int. C. S. Oil Co. v. Wheelock, 124 Ala. 367, 371, 27 So. 517.

[3] So, under the authorities, valid service of local process cannot be made on a foreign corporation by serving it on its officer or agent, who comes within the borders of the state with no purpose of transacting any

[4] It was proper for the witness Burnett to testify to his acquaintance with the defendant company's business, and that it had not at any time had an agent in Greene county for the transaction of its corporate business. This was a negative fact, which could be proved in no other way than by such a negation for, ostensibly, there were no facts for the witness to state, but simply an absence of facts-a case very different from the affirmative proof of an existing agency.

[5, 6] Burnett's conversations with plaintiff, in the absence of authority from defendant, were not competent to show that he was the agent of defendant. The question of breach of the contract vel non was not embraced within the issue. Nor, in any event, would the fact that Burnett, in the fall of 1922, assisted both parties in their negotiations for a purchase and sale of timber, be evidence that Burnett was "doing business" as agent for defendant when this suit was filed in February, 1924. See Int. C. S. Oil Co. v. Wheelock, 124 Ala. 367, 371, 27 So. 517.

[7] The fact that defendant's principal place of business was in Kansas City, Mo., was relevant to the issues made by the plea, and was properly admitted. So, also, was the fact that the president and treasurer of the corporation lived at that place, though it was a mere circumstance, of little weight in itself.

[8] The plaintiff introduced in evidence a number of letters that passed between Burnett and defendant, and himself and defendant, relating to the alleged transaction for breach of which he is suing, most of them being produced and identified by Burnett. On cross-examination Burnett testified that he had in his files 3,000 or 4,000 additional letters, the "general correspondence" between defendant corporation and his own, the Ingham-Burnett Lumber Company. Plaintiff moved for an order from the court to compel the production of this entire correspondence for inspection at the trial. Manifestly, this motion was too broad for any practical purpose. Nor would it have been proper to require the witness to bring into court such a mass of correspondence, the relevancy of which was not even suggested.

(102 So.)

of error, and do not find any to justify a
reversal of the judgment, which will there-
fore be affirmed.
Affirmed.

ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.

SMITH V. LEWIS. (6 Div. 224.)

(Supreme Court of Alabama. Oct. 16, 1924.
Rehearing Denied Nov. 20, 1924.)

1. Dismissal and nonsuit 44-Pleading
87, 193(1)-Motion in circuit court to dismiss
appealed case not proper mode of presenting
defensive matter; demurrer or plea being
necessary.

A motion in circuit court to dismiss suit and cancel judgment of an inferior court from which appeal was taken because suit was based on suit or vendor's lien, and plaintiff before suit had repossessed his property, having retained title until purchase price was paid, was properly overruled; demurrer or plea being proper procedure.

2. Pleading 208 Demurrer should state grounds therefor, otherwise court not put in error for overruling it.

Under Code 1907, § 5340, demurrer to a count in a complaint should specify defect, and when it does not, or the ground is general, court will not be placed in error for overruling it.

3. Appeal and error 242(3) Appellate court cannot review or pass on demurrers upon which trial court did not rule.

7. Pleading 129(5)-In action by individual no error in admitting contracts to plaintiff in name of company, if contract undisputed. Court did not err in admitting in evidence two contracts signed by defendant, payable to plaintiff in name of company, but sued on in his individual name, where there was no plea denying their execution.

8. Evidence 469-Allowing plaintiff to testify to amount of back payments due him, when goods were repossessed, held not contrary to written sale contract.

Where written contracts of sale provided that, should goods be repossessed, all installments due at repossession should be paid by buyer, and on repossession vendee again orally agreed to pay such back installments, vendor's testimony as to amount thereof did not contradict the writing.

9. Appeal and error 901-Overruling motion by defendant to retax cost presumed correct, unless affirmatively shown otherwise. Where defendant does not affirmatively show that cost items should not be taxed against him, order overruling his motion to have same retaxed is presumed correct.

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MILLER, J. This is a suit of E. D. Lewis, trading and doing business under the name of E. D. Lewis Furniture Company, against Jack Smith to recover the sum of murrers directed against certain counts in a $48 due under two conditional sale contracts

Where trial court makes no rulings on de

complaint, an appellate court cannot review and pass on the demurrers.

4. Sales 479(15)-Pleas to complaint by conditional seller for installments falling due before repossession held bad on demurrer.

In action by conditional vendor to recover back installments under contract that provided that, on taking repossession of goods, buyer should be liable for back installments, latter's pleas that vendor had rescinded sale and repossessed property held bad on demurrer. 5. Pleading 208 Demurrer not stating grounds therefor properly overruled.

Where demurrers to pleas were general, not specifying the defects as Code 1907, § 5340, directs, they should have been overruled. 6. Appeal and error 1040 (7)-Sustaining demurrer to plea will not work a reversal of judgment where case tried without jury, and defendant's case presented under general is

sue.

Error in sustaining demurrers to plea will not work reversal of judgment of trial court, where case was tried without jury, and defendant received the benefit of his pleas by evidence under general issue.

for household and kitchen furniture, executed by him. The case was tried by the circuit court without a jury on appeal or certiorari from the inferior court of Bessemer. The court found from the evidence that the defendant owed plaintiff $48 on the contracts, and rendered judgment accordingly. This appeal is prosecuted by the defendant from that judgment.

[1] The defendant filed a motion to dismiss the suit and cancel the judgment of the inferior court, because the suit is based on a note or vendor's lien for furniture, which plaintiff before commencing this suit took possession of as his property, the furniture the sole consideration of the note, was wherein plaintiff retained title until purchase price was paid; and that plaintiff thereby elected and executed his remedy and rights against the defendant. The trial court refused to hear testimony on this motion and overruled it, and in this there was no error. The matters set up in the motion are in their nature defensive. It was under

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these circumstances incumbent on the de-, aver there were two contracts. The demurfendant to demur or plead to the complaint. Montgomery Iron Works V Smith. 98 Ala. 644, 13 So. 525, Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944.

[2, 3] There are six counts in the complaint, designated as 1, A, B, B, C, and D. The defendant demurred to each of them. The court sustained demurrers to counts A, B, and C, and overruled them as to D. Count D may be demurrable, but it was not subject to the grounds of demurrer assigned to it. The grounds of demurrer should specify the defect in the count. When it does not, or the ground is general, the court will not be placed in error for overruling it. Section 5340, Code 1907; Ryall v Allen, 143 Ala. 222, 38 So 851; Wikle v Johnson, 132 Ala. 268, 31 So. 715; Morris v Beall, 85 Ala. 598, 5 So. 252 We find no ruling of the court on demurrers of defendant to counts 1 and B2, and we cannot review and pass on these demurrers.

Count 1 claims of defendant the sum of $48 due by note made by the defendant and $10 reasonable attorney's fee secured by it, which he agreed to pay

Count B1⁄2 claims $48 damages for the breach of two contracts entered into by defendant dated October 9 and 20, 1924, respectively, by which defendant agreed to pay $5 per two weeks from their dates for furniture until the entire purchase price was paid; and it was agreed therein, in the event the furniture was returned before full payment was made, the defendant would make all back payments due thereon; and it avers the defendant failed to make payment of the sum of $48 due under said contract as he agreed to do.

Count D is practically the same as count B2, except it states the purchase price of the furniture under one contract was $156.50, and under the other was $37.50, and it does not aver that defendant agreed, "in event the furniture was returned to plaintiff before fully paid, that defendant would make all back payments."

The defendant filed three pleas, numbered 1, 2, and 3, to these counts. Plea 1 was general issue. Demurrers of plaintiff to pleas 2 and 3 were sustained by the court.

[4-6] Pleas 2 and 3 are practically the same. They aver the contract referred to in the complaint was for furniture sold by plaintiff to defendant to be paid in installments; that after defendant had paid numerous installments embraced therein the plaintiff "rescinded said contract and repossessed the furniture embraced in it, and the contract fails of consideration." These pleas are defective. We need not mention them. See Wellden v. Witt, 145 Ala. 605, 40 So. 126; Givhan v. Dailey, 4 Ala. 336; 3 Michie Dig. (Contracts) 360, §§ 179-191. The pleas

rers to these pleas were general, did not specify the defects as the statute (section 5340) directs, and they should have been overruled by the court. Section 5340, Code 1907, and authorities supra. This error will not work a reversal of the judgment because the case was tried without a jury, and defendant received the benefit of this evidence mentioned in the pleas under the general issue; and, under the undisputed evidence, the plaintiff was entitled to recover the sum of $48, the amount of the judgment in this case. The defendant was not injured by the error. It did not injuriously affect his substantial rights. Ryall v Allen, 143 Ala. 222, 38 So. 851; rule 45, 175 Ala. xxi; 2 Mayfield's Dig. 176-178.

[78] The court did not err in admitting in evidence the two contracts signed by the defendant payable to the plaintiff under the name of E. D. Lewis Furniture Company. There was no plea denying their execution. There was evidence that "they were the contracts and executed by the defendant," and they conformed to the description of them in counts B1⁄2 and D. The court did not err in allowing plaintiff to testify as to the amount paid by defendant to him on the contracts and the agreement between them when the property was returned. It was not contrary to, but the same as, the written agreements. The evidence without dispute showed plaintiff sold defendant household and kitchen furniture at two different times for which he executed two contracts. The contract was $156.50, and under the other purchase price of the furniture under one was $37.50. It was to be paid for under each contract at $5 per two weeks until the ed in its body that the property and the title same was paid in full. Each contract statto it shall be and remain the property of E. D. Lewis Furniture Company until fully paid for as above shown. Each contract contained this covenant by the defendant:

"And if I neglect to pay said weekly or monthly installments when due [time being the essence of the contract], said E. D. Lewis Furniture Company, or their agents, shall have the right and privilege to enter my premises at any time thereafter to demand and take feit and lose all previous payments made thereaway their said property, and I agree to foron, the same being treated as rents. I further agree to make all back payments in case goods are returned."

The total amount paid by the defendant under both contracts aggregated the sum of $39. The defendant and his wife separated, and he sent for the plaintiff to come and get the furniture, and told him to go and get the goods, and he would pay the back payments all up to the time of taking the furniture

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