Hutchinson Shoe Co. v. Elko Mercantile Co.

84 S.E. 453, 143 Ga. 170, 1915 Ga. LEXIS 335

• Court: Supreme Court of Georgia
• Decided: February 11, 1915
• Status: Published

Opinion

Hill, J.

The Hutchinson Shoe Company brought suit against the Elko Mercantile Company, alleging that it was a partnership composed of E. B. Davis, A. C. Pate Jr., L. L. Henderson, and E. P. Kezar, and that the defendants were indebted to the plaintiff a stated sum on two promissory notes and on an account, besides interest and attorney’s fees due on the notes, which sums the •> defendants refused to pay. Two of the defendants, L. L. Henderson and E. P. Kezar, separately defended on the grounds, that they were not members of the partnership doing business under the name of the Elko Mercantile Company, and never had been; that the notes sued on were never executed by them, nor by any one authorized by them; that the Elko Mercantile Company was a partnership composed of E. B. Davis and A. C. Pate Jr., and they as individuals were, on the 24th day of October, 1910, adjudicated bankrupts in the district court of the United States for the southern district of Georgia, on a petition filed by certain creditors of the partnership, in which petition it was alleged that the Elko' Mercantile Company was a partnership- composed of E. B. Davis and A. C. Pate Jr.; that the Hutchinson Shoe Company, plaintiff in the instant case, with full knowledge of the bankruptcy proceedings and of the fact that the Elko Mercantile Company, as a firm composed of Davis and Pate Jr., had been adjudicated bankrupts-therein, filed its proof of debt in the bankruptcy proceedings and collected and received from the trustees of the bankrupts a dividend on its debt; that in its proof of debt so filed the plaintiff averred that it was a creditor of the Elko Mercantile Company, a partnership composed of E. B. Davis and A. C. Pate Jr., who had been adjudicated bankrupts in the bankruptcy proceedings; and that the debt proved by the plaintiff in these proceedings is the identical debt on which suit in the instant case is predicated. Wherefore it was averred that the plaintiff was estopped from denying that the Elko Mercantile Company was a partnership composed- of E. B. Davis and A. C. Pate Jr., and was bound by its declaration on oath to the efEect that the defendants Henderson and Eezar were not members of the Elko Mercantile Company, on which declaration the plaintiff received a dividend from the estate of the bankrupt. Henderson defended on the further ground that at the time of the existence of the alleged partnership, and at the time the debt sued on is alleged to have been contracted, he was a minor, and that ho never entered into any contract or partnership as alleged in the declaration, or contracted the debt sued on; and if he ever entered into such contract, which he denies, he is not bound by it, because of his minority. The jury returned a verdict in favor of the defendants. A motion for a new trial having been overruled, the plaintiff excepted.

1. On the trial of the case a certified copy of an involuntary petition in bankruptcy filed against the Elko Mercantile Company in the district court of the United 'States for the southern district of Georgia, and the order thereon of the referee, adjudicating the Elko Mercantile Company bankrupts, in which petition and order of adjudication it was alleged that the firm was composed of E. B. Davis and A. C. Pate Jr., and proof of the debt now sued on by the Hutchinson Shoe Company, in which affidavit of proof it was alleged that the firm so adjudicated bankrupts was composed of E. B. Davis and A. C. Pate J"r., the affidavit following the petition and order of adjudication, were admitted in evidence over the objection of the plaintiff. This evidence was objected to on the ground that it was irrelevant and did not illustrate or throw any light on the case; and because the proof of claim was made for the benefit of the defendants, the dividend received going as a credit-on the claim, thereby inuring to the benefit of the defendants. This evidence was not inadmissible for any of the reasons assigned. On the contrary, we think the evidence was admissible as a quasi or informal admission, though subject to explanation or rebuttal. Statements made in an affidavit by a party to a case in court are competent as such admissions, and will be received in another cause where the party against whom the admission is offered is a party. 2 Cham. Mod. L. Ev. § 1272; 2 Wig. Ev. § 1058.

2. The court charged the jury as follows: “As I stated, gentlemen of the jury, the question in this case is partnership or no partnership. Were these defendants members of the firm at the time the goods were bought, or were they not ? That is the ques-. tion that you are to pass upon.” The criticism on this charge is that it restricted the inquiry by the jury too narrowly, and precluded a consideration of the theory that the defendants were holding out to the world and creditors that the defendants would incorporate and do business in the corporate name, and prior to incorporation had rendered themselves liable to creditors as partners. This coritention is without merit. The charge correctly and clearly stated the issue. The evidence fox the defendants tended to show that they had run notices in the papers in April, before this contract was executed in July, declaring that they were not partners, and that there was no incorporation. This was the sole issue, and the trial judge clearly stated it.

3. It was not error on the trial for the court to charge the jury: “You are familiar with what is known ordinarily as a partnership mercantile business, and it is not necessary that I should go into details as to that. It is necessary, however, that all the partners should have a common interest in the profits and losses, joint interest in the profits and losses, or a joint interest in the capital ■■stock.” This charge is substantially in the language of the Civil Code, § 3158, defining what a partnership is, relatively to third persons, and is not subject to the criticism that it does not correctly state what constitutes a partnership as to third persons. For an elaborate discussion of what constitutes a partnership, see the opinion of Mr. Justice Lumpkin in the case of Floyd v. Kicklighter, 139 Ga. 133-135 (76 S. E. 1011).

4. The other assignments of error, complaining of certain instructions given the jury by the court, are without substantial merit, and the court did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.