Waring & Son v. Grady's , 49 Ala. 465 ( 1873 )

PETERS, C. J.

— A partnership is created by agreement of the parties who constitute it, and it may be entered into with reference to a custom or usage of the place where its business is to be transacted. If this custom is a legal one, and such as the law will enforce, it may modify the legal effect of the partnership agreement; and such a custom may be shown, in connection with the contract, to establish the intention of the parties in entering into it, for such a custom becomes a part of the contract itself, and explains its stipulations. Sampson & Lindsay v. Gazzum, 6 Porter, 123; Mills v. United States Bank, 11 Wheaton, 431; Cutler v. Powell, 6 Term, 320. This doctrine, applied to this case, very clearly shows that the charge asked by the plaintiffs below ought to have been given to the jury. This charge was not abstract, but was fully supported by the evidence, which was wholly uncontradicted. It was asked in writing, and it contains a fair statement of a legal proposition, applicable to the issues submitted to the jury. The court erred in refusing to give it.

The charge given by the court was also incorrect, and was calculated to mislead the jury. It had the effect to withdraw from their consideration all that part of the evidence which tended to establish the custom or usage, which modified the legal effect of the partnership agreement, in reference to the purchase of the salt. Such a charge cannot be sustained. 29 Ala. 188; 24 Ala. 651; 23 Ala. 17; 22 Ala. 501, 796. If the obligations of the partnership were modified by the usage attempted to be proven, of which the jury must judge, then the contract of partnership permitted the salt to be purchased. What this contract permitted was within the scope of the business in which the firm was engaged; and, within this scope or limit, the act of one partner is the act of all, and binds all. 3 Kent, 40, 41; 1 Parsons on Contracts, 174-5, and cases there cited. If a partner wishes to protect himself against such a usage, the partnership agreement should be so framed as to do this, or he should give notice of dissent. 27 Ala. 245.

The judgment of the court below is reversed, and the cause is remanded for a new trial.