Lister v. Vowell , 122 Ala. 264 ( 1898 )

SHARPE, J.

— Upon the theory that the plaintiffs were partners and were suing for the taking of their partnership property, the action was properly brought in their individual names, and the amendment describing the plaintiffs as partners if not necessary to be made did not make any change of parties. Since a partnership is not a person, either natural or artificial, it cannot sue as a party plaintiff in the firm name. — Moore & McGee v. Burns & Co., 60 Ala. 269; Lanford v. Patton, Donegan & Co., 44 Ala. 584. The addition of the firm name “Vowell Lumber Co.,” whereby it appears in the complaint as a party plaintiff was unavailing for such purpose, but the objection to these amendments coming by motion to strike out the whole complaint as amended on the ground that it was a departure was not well taken and was properly overruled. The addition of the words “as sheriff of Etowah County, Alabama” to the defendant’s name was merely descriptive of the defendant, and the refusal of the court to strike them out was harmless to the defendant.

This appeal is from a judgment rendered against appellant for the value only of lumber levied on and sold by him as sheriff, and the other property mentioned in the complaint is not here involved.

It appears from the evidence that a half interest in the saw mill at which the lumber was made was rented in 1886 for plaintiff A. P. Vowell by her husband who used therefor $200 of her money. ■ That he thereafter worked, at the mill and managed her interest as her agent until about 1891, when the mill was bought for- her for $500, of which $200 was paid from proceeds of a sale of her land and the rest Avas paid out of the proceeds of the business. Thereafter the other plaintiffs, R. D. and J. A. Yowell, each became the owner of a third interest in the mill by purchase from A. P. Vowell, and from February, 1896, the business was carried on by the plaintiffs jointly under the name of the Vowell Lumber Company, during Aidiich time I). N. Vowell continued to work in the mill and to manage his Avife’s interest as her agent and at the same time the plaintiffs R. I). and J. A. Vowell also worked in the mill and made payments on the purchase of their respective interests from the proceeds of the business. The lumber Avas taken by defendant under an execution Avhich he held as sheriff against D. N. Vowel], and Avhen taken the lumber Avas stacked near the mill and Avas OAvned by the VoavcII Lumber Co., and Avas produced at the mill after plaintiffs R. D. and J. A. VoAvell acquired their interests. The fact that Mrs. VoAvell through her husband bought the mill, entered into the partnership and engaged in the business Avas testified to Avitbout objection or contradiction. If the proceeding Avere one seeking to bind her upon the contracts involved in those transactions it would be material to inquire whether they Avere in Avriting assented to by the husband aeording to the statute then in force. But she had capacity to acquire property without a Avritten contract, and in this controversy between her and a third person such written contract and assent Avas. not essential- to sustain her claim of ownership to the lumber; and whether her husband had Avritten authority to act as her agent was likewise immaterial.

The creditors of D. N. VoAvell had no legal right to require that his personal services should be devoted to the extinguishment of their claims, and the fact that his labor" in, and management of, the business resulted in profits Avhich paid in part for the mill and for its operation did not render the lumber, or Mrs. Vo well’s interest therein, subject to the execution. — Wheeler v. Biggs (Miss.), 15 So. Rep. 118. The evidence was sufficient to authorize a judgment for the value of the lumber sued for with interest.

The complaint claims for only 26,000 feet, the value of which' estimated according to the proof and upon the lumber of the best class taken is $227.65. The judgment of the city court is for $366.73 which, though corresponding to the value of the lumber shown by the proof to have been taken, was plainly excessive of the claim as made by the complaint. The jury having been waived, the judgment will be reversed and here rendered that the plaintiffs recover of the defendant two hundred and fifty-five dollars and twenty cents, being the value with interest of the lumber claimed for in the complaint, besides his cost in the city court, exclusive of the costs of the appeal which will be taxed against the appellee.

Keversed and rendered.