First National Bank v. Leland , 122 Ala. 289 ( 1898 )

HARALSON, J.

— 1. The appellant sued the appellee on two hills of exchange, each drawn by appellee — who was the wife of W. A. Leland, though the complaint does not show that fact, — in favor of the appellant, the plaintiff below, on W. A. Leland & Co., one bearing date, 18th March, 1893, for $150, payable on 20th May, 1893, the other for $423.65, dated 13th April, 1893, and payable on 15th July, 1893, each bill containing by indorsement on its back signed hv defendant, a waiver of exemptions as to personal property, and a waiver of presentment, protest and notice thereof.

The defendant pleaded two pleas to the complaint, the first, “that she was, at the time of the making of said bills of exchange, and now is, a married woman, the wife of W. A. Leland, that said bills of exchange were given to secure, renew, or extend a debt, owing to plaintiff by her said husband, W. A. Leland, she standing in the relation of surety on said bills of exchange for her said husband,” and the second, “that at the time of the making of the bills of exchange sued on, she was a mar ried woman, W. A. Leland being her husband, and that she did not have the assent in writing of her said husband, to make the contracts her sued on.”

Under our statutes, if either of these pleas was true, it presented a good and meritorious defense to the suit; and if both were true, they presented a double defense to the maintenance of the action.

2. The plaintiff demurred to the first ])lea on many grounds, among them, that the plea does not show that W. A. Leland & Co., the acceptors of the bills, is the same person as W. A. Leland, the defendant’s husband; that the bills of exchange show that the debts are those of de-fendant, the drawer, or of W. A. Leland &. Co., the acceptors, the only parties to the bills; that the plea does not aver, that W. A. Leland & Co. are the same as W. A. Leland, the defendant’s husband, and she cannot contradict the written contract, by saying that the debt secured by the bill is the debt of a stranger; that she cannot contradict the written instruments by showing that the debtor is a party other than one of those who the said bills show are the debtors, and for the further reason, that if it be true as averred in the plea, that the debts secured by the bills are the debts of W. A. Leland, the defendant is estopped from setting up that fact against the plaintiff, because the defendant drew said bills on W. A. Leland & Company, and cannot now be heard to say as a defense to an action thereon, that W. A. Leland & Co. is not a corporation or a partnership composed of two or more persons.

The plea on its face does not show that the defendant is estopped to set up the defense thereby interposed. Tlie matter of estoppel set up in the demurrer arises dehors the plea, and the demurrer setting up such facts is a mere speaking demurrer. It was an attempt to reach by demurrer that which should have been set up by replication to the plea. Matters of estoppel in pais are the subjects of pleas in bar.

The plea itself, furthermore, plainly enough shows, that the debts sued on were the debts of W.A. Leland, the defendant’s husband; and that W. A. Leland, of W. A. Leland & Co., whether that firm consisted of W. A. Leland alone, doing business under a firm name, or in partnership with others, was the husband of the defendant. If it was true as averred in the plea, that the bills sued on, “were given to secure, renew, or extend debts of her said husband, W. A. Leland, and that she stands in relation of surety on said bills of exchange for her said husband,” it could scarcely make any difference who composed said firm, if said Leland was a member of it, or whether it consisted of one or more persons trading under a name indicating a partnership. — Code, § 2529 (2349) ; McNeil v. Davis, 105 Ala. 657; Clement v. Draper, 108 Ala. 211; Richardson v. Stephens, 114 Ala. 238. The name of Leland & Co. imports a partnership, but if a person does business under a firm name, the reputed firm may be sued by such name, and the execution will run against the partnership in name, leviable only on its property, being in the nature of a proceeding in rem, and not in personam. — Birmingham L. & A. Co. v. F. N. Bank Anniston, 100 Ala. 249. The demurrer to the plea was properly overruled.

3. The defendant below, under the provisions of the Code, section '1850 (2816) filed interrogatories to the plaintiff. One of the officers answered the interrogatories. The answers were not responsive to the questions propounded, and were, besides, illegal evidence. There was no error in striking them, nor in allowing what remained thereafter of the deposition to be read in evidence by defendant. — Code, § 1855 (2819) ; Culver v. A. M. R. Co., 108 Ala. 330, 333.

4. Tlie witness, Moody, for plaintiff, testified, tliat lie had not seen tlie books of tlie firm of W. A. Leland & Co., was not present AAdien it AAras formed, and tliat lie only knew of tlie members of said firm from AAdiat be had been told. It was not attempted to be sho wn by him that he ev'er receiAred any information on the subject from the defendant, Mrs. Leland. Nor was there any proof that she ever admitted that such a partnership existed, or that she ever held herself out as a partner, or had anything to do Avith said firm. Several questions Avere propounded to said witness, the object of which was, to show by the declarations of W. A. Leland, defendant’s husband, or from others besides Mrs. Leland, Avho composed it, and that Mrs. Leland constituted the company; that she OAvned a farm, and her husband attended to it and all her business, and that at the time the money was loaned for AAdiich the bills of exchange Avere given, said Leland told Avitness, who Avas president of the plaintiff corporation, that defendant Avas a member of said firm.

It is Avell settled, that admissions of the husband in relation to the business of the Avife, not made in her presence, are not binding on her, especially when acting as her agent, as to any past transaction, or -which are not explanatory of some contemporaneous one within the scope of his authority, or made in the execution of his agency. Certainly if an agent to attend to her business generally such an agency Avould not imply an authority to declare her to be his partner in business. — Mitcham v. Schuessler, 98 Ala. 635; Agnew v. McGill, 96 Ala. 496. Moreover, under section 2346 of the Code of 1886, the wife could not contract so as to bind herself, except in Avriting ,and Avith the Avritten assent or .concurrence of the husband expressed in writing; and she Avas incapable of conferring authority resting in parol, upon her husband, or any other person, to make or sign a contract in her name. — Clement v. Draper, Mathis & Co., 108 Ala. 211. And, so far as the declarations of the husband sought to be introduced for the purpose of shoAving a partnership between himself and the defendant are concerned, it may be said, that the declarations of one partner not made in the presence of his co-partner are never competent to prove the existence of the partnership between them. It is only when the partnership has been otherwise proved, that the declarations of one partner are admisible against the other, in the conduct of the partnership business. The existence of a partnership is a fact, to which a witness may testify when he lias knowledge of its existence, but it can never be established by general reputation, or on hearsay evidence. — Clark v. Taylor, 68 Ala. 454; Central R. R. & B. Co. v. Smith, 76 Ala. 572. All this evidence, then, of said witness, Moody, Avhich was excluded, constituting the basis for assignments of error from 6 to 12 inclusive, was properly excluded.

5.. Mrs. Leiand testified, that she signed her name where it appears on said bills introduced in evidence and to the waiver of exemptions, ■ protest and notice thereon, and that her husband, Avho Avas doing business under the name of W. A. Leiand & Co., requested her to sign said bills, and at the same time, he signed the name of W. A. Leiand & Co., as acceptor, and to the waivers of protest and exemptions where it appears on the bills; that at the time, she OAved the plaintiff nothing, and said bills were made to secure a debt which her said husband owed the plaintiff; that at the time of the trial and at the time said bills were signed and for a long time prior thereto, she Avas a married woman, the Avife of said W. A. Leiand, the same person who had carried on business under the name of W. A. Leiand & Co., avIio contracted the debt for which said bills Avere given, and who had signed the name of W. A. Leiand & Co. as acceptor of said bills; that her husband had not signed any Avriting in connection with or in reference to said bills and the drawing of the same by her, other than the bills themseNes and the AvaiArers on the backs of them show; that, her husband requested her to sign the bills, and at the same time he signed the name of W. A. Leiand & Co. on them, where that name appears, and that W. A. Leiand & Co. was not a partnership, but Avas her husband, car-r ing- on business in that name. On the cross-examinat'm she testified, that she did not know for whose debt the bills were given, nor the consideration for the same, but that the debt was not her own, and she signed them at the request of her husband. There was no evidence in conflict with these statements of hers.

6. It' sufficiently appears that the debts for which the bills were given were owing by W. A. Lelancl, and that they were in renewal of former bills; that the wife signed them at the request of her said husband; that she was, really, an accommodation drawer, and Avas in substance no more than a surety for her husband for the payment of the bills. Under the first plea, therefore, the defendant was entitled to the general charge.

It is unnecessary to consider other assignments of error.

Affirmed.