
    Alexander v. Handley, Reeves & Co.
    
      Action on Common Counts, for Goods Sold and Delivered.
    
    1. Proof of partnership; opinion of witness. — Strangers to a partnership, to establish its existence, may either prove the terms oí thepart-nership agreement, or merely show the existence of an agreement between the parties sought to be charged, the legal effect of which is to make them partners, or liable as such to persons dealing with the firm ; but, whether one or the other of these modes of proof is attempted, the opinion or conclusion of a witness that a person, sought to be charged, is a partner, is not competent evidence of the fact.
    2. Liability as partner. — A person, whether in fact he is a partner or not, if he permits himself tobe held out as a partner, on the principle of an estoppelin pais, becomes liable to those who deal with the firm on the faith that he is a partner; but evidence of such person’s conduct or declarations tending to show that he was a partner, is inadmissible, where such conductor declarations were not communicated to the public or to the plaintiff, and were not relied on by the plaintiff.
    3. Admissibility of party’s own declarations — A party’s own declarations, made in the absence of his adversary, are not competent evidence for him.
    Appeal from tbe Circuit Court of Marengo.
    Tried before tbe Hon. W. E. ClaRKE.
    Tbis action as originally brought by tbe appellees, Hand-ley, Reeves & Co., was against I). C. Alexander and James T. McDonald, indiyi&ually, and as partners composing tbe firm of D. C. Alexander & Co. Tbe complaint was amended by adding J. D. Alexander as a party defendant. Tbe corn-complaint contained two common counts, one claiming $289.71-100 and interest, “for merchandise, goods and chattels sold by tbe plaintiffs to tbe defendantstbe other claiming tbe same sum with interest, “due on an account stated between tbe plaintiffs and tbe defendants ” Tbe verdict and judgment were in favor of tbe plaintiffs against tbe defendants, D. C. Alexander and J. D. Alexander, and in favor of tbe defendant J. T. McDonald.
    Tbe contention on tbe trial, as disclosed by tbe bill of exceptions, was as to tbe liabilty of tbe defendant J. D. Alexander as a partner in tbe firm of D. C. Alexander & Co. It was admitted that tbe firm of D. C. Alexander & Co. was organized October. 1,1885, and was in existence until October, 1886.
    One Adams, a witness for tbe plaintiffs, testified that be was a traveling salesman for Stern & Co., of Montgomery, Alabama; that as such salesman in October, 1885, he went to the place of business of D. 0. Alexander & Co. for the purpose of selling a bill of goods to that Arm; that the store-house being unfinished, on the invitation of D. 0. Alexander, he went to the dwelling house of J. D. Alexander, who was an uncle of D. 0. Alexander, and there, in the presence of J. D. Alexander, exhibited his samples ; that J. D. Alexander examined the samples, did most of the talking,— gave directions as to purchases, and,'after or while the negotiations were pending, said to the witness: “If you will do well by us we will give your house our entire trade.” The witness, on cross-examination, having stated that he never told or communicated the facts to which he had testified to his own firm, Stern & Co., nor to the plaintiffs or any one else, the defendant J. 3). Alexander moved to exclude from the jury the testimony above recited, on the following-grounds : (1.) Because it was irrelevant. (2.) Because it was res inter alios acta. (3.) Because no knowledge of the facts testified to was traced to the plaintiffs. The court overruled this motion, and the defendant J. D. Alexander excepted.
    The defendant J. D. Alexander offered in evidence a letter written by him in October, 1885, to J. T. McDonald, in which he mentioned that his nephews, D. C. and A. D. Alexander, had formed a copartnership in the mercantile business, and referred to the business as theirs. To the .refusal of the court to admit this letter in evidence against the objection of the plaintiffs, the defendant J. D. Alexander excepted.
    Geo. W. Taylor, for the appellant,
    cited Boykin v. Bank of Mobile, 72 Ala. 262; Bush v. Tayloe, 75 Ala. 482; Couch v. Woodruff', 63 Ala. 466; Ala. Fertilizer Go. v. Reynolds, 83 Ala. 19; Bell v. Kendall, 8 So. Bep. 492.
    J. T. Joees and G. B. JohnseoN, contra.
    
   WALKEB, J.

The appellant J. D. Alexander was liable to the appellees, who were creditors of the firm of D. C. Alexander & Co., if (1), at the time the debt to the appellees was contracted he was actually a partner of that firm by agreement, or (2), whether in fact he was a partner or not, if he permitted himself to be held out as a partner, and the appellees contracted with the firm on the faith that he was a partner. In the one case his liability results from the fact that the debt was contracted by a partnership of which he was really a member; in tbe other, because bis previous declarations or conduct bave amounted to a representation that be was a partner, be may be treated as really a partner by one wbo has been misled to bis prejudice by relying on the truth of such representation. — Ala. Fertilizer Co. Reynolds, 85 Ala. 19; Levy v. Alexander, 95 Ala. 101.

It was competent for tbe appellees to show either or both of tbe two states of fact. They undertook to prove both of them. Tbe first mentioned state of facts could not be established by anything short of evidence of an agreement, express or implied, on the part of J. D. Alexander, to be a partner in tbe defendant firm. It was not, however, incumbent on tbe appellees to prove tbe terms of tbe partnership agreement. It was clearly shown that tbe agreement which disclosed wbo were members of tbe firm of I). C. Alexander & Co. and which established tbe partnership relation as it really existed, was in writing. Tbe writing itself was tbe best evidence of tbe actual agreement. Yet, as tbe plaintiffs were not entitled to tbe custody of that paper, and could not be presumed to bave possession of it, they could not be required to prove its contents. It was competent for them, as strangers to tbe partnership, to establish its existence either by proof of the written instrument evidencing tbe partnership agreement, or by other evidence that there was an agreement between tbe individual defendants tbe legal effect of which was to make them partners, or liable as such to persons dealing with tbe firm.— Griffin v. Doe, 12 Ala. 783; 17 Am. & Eng. Encyc. of Law, 1316. Tbe plaintiffs undertook, as they bad tbe right to do, to prove tbe partnership in both ways. They offered secondary evidence of tbe contents of tbe written instrument, tbe original paper having been lost or mislaid.

D. C. Alexander was examined as a witness on this subject. In tbe course of bis examination in reference to tbe existence and contents of tbe written agreement, be was asked this question, “Was or not J. I). Alexander a member of said partnership?” Tbe connection in which tbe question was asked made it plain that its purpose was to call out tbe opinion or conclusion of tbe witness as to whether tbe effect of tbe agreement which was evidenced by tbe writing was to make J. D. Alexander a partner. Tbe answer of tbe witness shows that be understood tbe question to bave that meaning. His answer was, “J. D. Alexander was a member of tbe firm, according to my construction of tbe contract.” Tbe question called for and elicited incompetent testimony, and the objection to it should bave been sustained. It is the exclusive province of the court to construe a written instrument, and to declare its legal effect, whether the instrument itself is produced or its contents are proved by secondary evidence. So far as the attempt was to show that the agreement which was reduced to writing made J. D. Alexander a partner, the evidence should have been confined to proof of the execution and of the contents of the written instrument. It was competent for the plaintiffs to prove the language of that instrument. It was lor the court, and not for the witness or the jury, to construe that language when proved.

If the purpose was to prove by this witness, independent of his testimony in regard to the written instrument, that J. D. Alexander was by agreement a member of the defendant firm, the opinion or conclusion of the witness that such was the case, would not be competent evidence. “Partnership, and who compose it must be proved, not by reputation, or opinion, but as other material facts are proved. Conduct, conversation, control, or any other relevant fact tending to show it, or that persons permitted themselves to be treated or trusted as partners, are among the pertinent questions by which partnership liability is established. We mean the facts — not opinions or conclusions drawn from them.” Rabitte v. Orr, 83 Ala. 185.

The conduct and declarations of J. D. Alexander which were testified to by the witness Adams were not communicated to the plaintiffs or to any one else. The plaintiffs could not have relied on, or have been misled by expressions or dealings of which they were not informed. A party is not entitled to make a circumstance of which he was wholly ignorant the basis of an estoppel in pais in his favor. — Ala. Fertilizer Co. Reynolds, supra; Levy v. Alexander, supra. The motion to exclude the testimony of the witness Adams should have been sustained.

The letter of J. D. Alexander to McDonald, so far as it referred to the partnership at all, was a declaration in his own favor to a stranger to the plaintiffs. A party’s own declarations, made in the absence of his adversary, can not be converted into evidence for him.— Woodruff v. Winston, 63 Ala. 412. The court properly refused to admit the letter in evidence.

Beversed and remanded.  