Mitchell, Rix, & Co. v. Rich

Supreme Court of Alabama

Mitchell, Rix, & Co. v. Rich

1 Ala. 228

DecidedJanuary 15, 1840

StatusPublished

This text of 1 Ala. 228 (Mitchell, Rix, & Co. v. Rich) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mitchell, Rix, & Co. v. Rich, 1 Ala. 228 (Ala. 1840).

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Opinion

GOLDTHWAITE, J.

— It is not important to consider, whether the allegation, that the defendants were late merchants in trade doing business under the name and firm stated, is equivalent to an averment that they were late partners ; for without this allegation, no presumption of partnership can arise; and with it, we must [229]*229infer what the words evidently import — that the partnership did not exist when the vvi it was issued. In either aspect of the case, the same legal consequences ensue. If the defendants were not partners at the time of the confession of the judgment, Rich had no pretence of authority, to bind the other defendants. Indeed the record does not disclose, that he did more than confess the cause of action as to himself. The judgment should have been entered against him only.

If one partner is to be considered as authorised to confess judgment in the name of the firm, (a matter, as to which, we give no opinion) it can only be during the continuance of the partnership: and therefore, if the confession had been by Rich, in the name of his partners, the judgment would have been erroneous; as the dissolution of the firm, must be inferred from the allegation that the defendants were late merchants in trade, etc.

Let the judgment be reversed and the cause remanded, that the plaintiff may proceed against Rich alone, or otherwise, as he may be advised.

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GOLDTHWAITE, J.

— It is not important to consider, whether the allegation, that the defendants were late merchants in trade doing business under the name and firm stated, is equivalent to an averment that they were late partners ; for without this allegation, no presumption of partnership can arise; and with it, we must [229]*229infer what the words evidently import — that the partnership did not exist when the vvi it was issued. In either aspect of the case, the same legal consequences ensue. If the defendants were not partners at the time of the confession of the judgment, Rich had no pretence of authority, to bind the other defendants. Indeed the record does not disclose, that he did more than confess the cause of action as to himself. The judgment should have been entered against him only.

If one partner is to be considered as authorised to confess judgment in the name of the firm, (a matter, as to which, we give no opinion) it can only be during the continuance of the partnership: and therefore, if the confession had been by Rich, in the name of his partners, the judgment would have been erroneous; as the dissolution of the firm, must be inferred from the allegation that the defendants were late merchants in trade, etc.

Let the judgment be reversed and the cause remanded, that the plaintiff may proceed against Rich alone, or otherwise, as he may be advised.

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Bluebook (online)

1 Ala. 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-rix-co-v-rich-ala-1840.