Kirkland v. Laumer Lumber Co.

91 So. 492, 206 Ala. 633, 1921 Ala. LEXIS 280

Opinion

THOMAS, J.

The suit was on the common counts. There was jury and verdict for the defendant.

The course of dealing of defendant with the firm of J. A. & M. W. Kirkland made a jury question as to whether the former had knowledge or notice of the dissolution of the latter before payment was made by its check to that firm. The question of law and fact was that of agency as applied to a third party dealing- with the firm pursuant to the former course of a mutual business relation. Cooper v. Cooper (Ala. Sup.) 91 South. 82; 1 Winship v. Bank, 5 Pet. 529, 8 L. Ed. 216; Le Roy v. Johnson, 2 Pet. 186, 198, 7 L. Ed. 391; 20 R. C. L. 885; Dadeville U. Warehouse Co. v. Jefferson Fertilizer Co., 194 Ala. 683, 69 South. 918; Dixie Ind. Co. v. Atlas Lbr. Co., 202 Ala. 562, 565, 81 South. 64. The several charges on the effect of the evidence were properly refused. McMillan v. Aiken, 205 Ala. 35, 88 South. 135.

In the. light of the evidence as to defend ant’s past business relations with the firm of J. A. & M. W. Kirkland, the positive testimony as to its purchase of the lumber in question by telephone as had been the fact with previous shipments, we cannot say that the evidence overwhelmingly showed its knowledge of facts that amounted to notice of the dissolution of that partnership before and at the time of its payment by check to 'that partnership for the lumber in question. Mooneyham v. Herring, 204 Ala. 332, 85 South. 390. There was no error in refusing the motion for a new trial. The case is different from that on which rested the decision in L. & N. v. Moran, 190 Ala. 108, 124, 66 South. 799, as to denial of the existence of physical facts as bearing on the plaintiffs contributory negligence. The judgment is affirmed.

Affirmed.

ANDERSON, O. J., and McCDEDLAN and SOMERVILLE, JJ„ concur.

1 Ante, p. 519.