Joseph, Gaboury & Co. v. Southwark Foundry & Machine Co.

99 Ala. 47

• Court: Supreme Court of Alabama
• Decided: November 15, 1891
• Status: Published

Opinion

COLEMAN, J.

Thfe suit is in assumpsit against appellants as a partnership. The material issues of fact presented by the pleadings were, whether the contract, the foundation of the suit, was made with the defendant partnersliip, or made with the Simplex Compress Manufacturing Company, a corporation formed after the dissolution of the partnership, and which succeeded it; and if made after the dissolution of the partnership, whether plaintiffs had notice that the partnership had been dissolved. There was evidence which tended to sustain the special plea of defendants, and there was evidence which tended to support plaintiff’s replication to the plea.

There was no error in overruling the motion to exclude the answer of the witness Cornelius to the 9th interrogatory. Contradictory statements made by a witness, unexplained, may affect his credibility, but do not render the . statements incompetent as evidence.

, In the case of Mauldin v. Branch Bank at Mobile, 2 Ala. 502, it was held, that “a dissolution of a partnership may take place inter partes, and yet the connection continue as it respects the rest of the world. In respect to all persons , who have had no previous dealings with the concern, a constructive or implied notice of its dissolution will be sufficient. But as to persons who have had dealings with the firm, during its continuance, it is requisite, that actual notice be given, or that such steps have been taken as to warrant the inference that it was received by the creditor.” •The rule rests upon the principle, that the partnership being once known to exist, its continuance will be presumed in favor of third persons, who have had dealings with it as a partnership, until notice of its dissolution has been brought home to them.

In the case of Burns v. Campbell, 71 Ala. 286, it was held that, “if a debtor to whom an account is rendered either admits its correctness, or retains it and makes no objection within a reasonable time, he will be bound by it as an account stated, his silence in the latter case being presumptively construed into an acquiescence in its justness,” citing Langdon v. Roane, 6 Ala. 518. It is further held in the same opinion, that if one item only is objected to, this is an admission of the correctness of the other items to which no objection is interposed.

These principles of law sustain the first seven charges given for plaintiff. The eighth charge needs no citation of authority to sustain it.

In reply to the 9th interrogatory, the witness Cornelius testified directly that the defendants-employed the plaintiff to build four presses for them; and the witness Mirkil testifies as to the time the contract was made. The first charge asked for by defendants was, therefore, properly refused.

We find no evidence in the record, which would have authorized the giving of either of the charges requested by defendants.

The judgment of the lower court is affirmed.