Sealy v. Lake , 243 Ala. 396 ( 1942 )

The plea of "payment" filed by the defendant Lake in the action of assumpsit on the verified account against the partnership of Lake and McCaskill, imported payment by the defendant Lake (Code 1940, Tit. 7, § 233, form 38), and when Lake offered the assignment purporting to convey the entire interest of the partnership, in proof of his plea, and obtained a judgment of the circuit court adjudicating his non-liability in said suit, notwithstanding his effort to limit the transfer to the interest of McCaskill, he ratified the authority of said McCaskill to act for and in behalf of the partnership.

The equity suit by Sealys seeking a cancellation of the transfers was disposed of before the trial at law, and the issue of payment and ratification of McCaskill's authority was not an issue in that case. Lake had the right up to the time he offered said transfer and conveyance in support of his plea, to repudiate McCaskill's authority to transfer his (Lake's) interest, but he cannot in law or equity accept the benefits of such transaction and deny and repudiate the authority of his co-partner to make the same.

When the transfer was made by McCaskill for and in behalf of the partnership, the partners were acting under the common name, and prior to that time the indebtedness involved in the action of assumpsit had been contracted, Snyder bought into the partnership business with the indebtedness outstanding, and the partnership continued the business in the common name of "Lake and McCaskill". McCaskill in making the transfer assumed to act for the partnership and in its common name, and when Lake, who had in the meantime acquired Snyder's interest, ratified McCaskill's authority to make the transfer in settlement of the partnership's debts, he concluded his right to claim any interest in the property so transferred and conveyed.

Application for rehearing overruled.

GARDNER, C. J., and THOMAS, FOSTER, and LIVINGSTON, JJ., concur.