Harwell v. Phillips & Buttroff Manfg. Co. , 123 Ala. 460 ( 1898 )

DOWDELL, J.

The appellant was sued as administrator of the estate of A. Q. Fulmore, deceased, on a promissory note given by the firm of Roper & Company to the plaintiff. The complaint avers that the note sued upon was executed by J. F. Roper & Co. on the 27th day of April, 1891, and due and payable on the 1st day of November, 1891, and it further-averred that J. F. Roper & Co. was a mercantile firm composed of J. F. Roper and the defendant’s intestate, A. O. Fnlmore. J. F. Roper is not sued in this action. The complaint was subsequently amended by adding a count upon an account stated which, however, upon the trial of the cause was withdrawn by the plaintiff. To the count upon the note the defendant filed a special plea of non eSt factum. This placed upon the plaintiff the burden of showing the existence of the partnership and the execution of the note by some member of the firm, or some one authorized thereto by such partnership.' — Code, 1896, § 1801; Guice v. Thornton, 76 Ala. 466. It was admitted in evidence that the defendant’s intestate was a member of the firm of Roper & Co., and that the note was given for the purchase of goods sold by plaintiff to said firm during the existence of the partnership. The evidence further shows without conflict, that the firm of Roper & Co. was dissolved before the note sued upon was given.

One partner has no authority to bind another after the dissolution of the firm by signing the partnership name to a note for goods purchased by the firm prior to dissolution, nor even to renew a note given by the firm without the knowledge or consent of the other.—Rose v. Gunn, 79 Ala. 411; Myatts & Moore v. Bell, 41 Ala. 222; Cunningham v. Bragg & Co., 37 Ala. 436.

Under the plea of non esb factum the burden of proof was upon the plaintiff to show that the note was either executed by the defendant’s intestate, or if by another partner of the firm of which he was a member after its dissolution, then it was so executed with the knowledge and consent of the defendant’s intestate. So far as the bill of exceptions discloses — and it purports to set out all the evidence — there was a failure on the part of the plaintiff' to discharge the burden put upon him by the law. Nor do we think that the evidence affords such reasonable grounds of inference as would require the court to submit the question to the jury. The court erred in refusing to give the general charge requested by the defendant.

Under section 613 of the Code, it is not necessary for an exception to be reserved to the giving or refusal by the court of a written charge, but such exception by the very terms of the statute is presumed. Nor is such presumption overcome by the statement in the bill of exceptions that the “defendant excepted to the refusal of the court to give said charges,” which under the old rule would have been insufficient as an exception to each separately.

For the error pointed out the judgment of the court is reversed and the cause remanded.