
    Foreman v. Weil Bros.
    
      Detinue, for Recovery of Mules and Wagon.
    
    1. Suit in partnership name, without naming its members. — The purpose oí the law in requiring that the names oi' the members of a partnership plaintiff should appear, that the court might be informed what parties were before the court, is complied, with in an action of detinue where the names of the individual members, though omitted from the complaint, appear in the affidavit, and in other parts of the pleadings.
    2. Same ; waiver of defect., if any, by failure, to object. — Even though the complaint had been open to objection by its failure to set out the names of the individuals composing the partnership, such delect was waived by the defendant going to trial without making the objection in the court below.
    3. Gift of personal property; when actual delivery not necessary. While true, generally, that actual delivery of personal property is essential to constitute a gift of it to another, when the articles are numerous or bulky, and not easily taken in hand, it may be sufficient that the donor point them out to the donee, and allow him to take them.
    4. Estoppel. — Where the father, owning personal property, makes representations, and by his conduct influences advances to be made to his son upon the security of a mortgage upon said personal property — the mortgagee believing that the son has the right to so mortgage it, the law precludes the father from repudiating such representations to the injury of the mortgagee.
    Appeal from Chambers Circuit Court.
    Tried before the Hon. James R. Dowdell.
    This was an action of detinue brought by Weil Bros, against Lucius Foreman, to recover possession of mules and a wagon under a mortgage made to the plaintiffs by Ful-wood Foreman, a son of the defendant, on the 15th of January, 1891. The facts show that at the time of the execution of the mortgage by Fulwood Foreman, and during the remainder of the year, (1891), the defendant and his family were residing on the same place with the mortgagor; that Fulwood Foreman, desired to procure advances of money and supplies from Weil Bros, to make a crop for the year; that the defendant was present when his son made the mortgage to plaintiffs, and told plaintiffs that he had given this property to his son that he might mortgage it to get supplies to make a crop with, and to do with it as he pleased. It was shown that the plaintiffs advanced the full amount of the mortgage to said Fulwood Foreman. Upon seizure of the mortgaged property by the plaintiffs, the defendant claimed the property as his own, and gave a replevy bond for it. The trial was upon the plea of not guilty.
    There were no exceptions reserved on the trial, except to the giving of the affirmative charge for the plaintiffs. The errors assigned by the appellant, are : (1.) There is error in the judgment entry. (2.) The suit is in the name of a partnership, and not in the names of the members of the firm. (3.) The court erred in giving the general affirmative charge for the plaintiffs. t
    
      Sanford & Thomas, for appellant.
    1. Tbe property mortgaged by Fulwood Foreman, belonged to tbe appellant. Tbe proof showing tbat tbe appellant gave tbe property to tbe mortgagor for tbe purpose of securing advances was only a parol consent tbat bis property be mortgaged — Tbat being tbe fact, tbe mortgage was void. McPherson v. Walten, 16 Ala. 716. 2. There was np evidence tbat tbe property was ever delivered to Fulwood Foreman. “A bona fide intention to give, no matter bow decidedly formed, or bow often expressed, is insufficient to give title. Tbe donor must part with tbe dominion, &c.” Jones v. Dyer, 16 Ala. 224. 3. Tbe suit is in tbe name of tbe partnership». It is true, it is stated who composed the firm, but tbe suit is in tbe name of tbe partnership. A partnership, by tbe terms of tbe statute may be sued, but cannot sue. 4. Tbe first assignment of error is abandoned. Greene v. Lewis, 85 Ala. 221.
    A. & R. B. Barnes, for appellee.
    L. Tbeeappellant not having taken advantage of tbe defect in tbe complaint in tbe court below, by demurrer or plea, cannot raise tbe objection in this cburt. Moreover, tbe individual names are set out. Ortez v. Jeiuett, 23 Ala. 662. 2. There was a gift of tbe property to tbe mortgagor accompanied with such delivery as tbe nature of tbe property would permit. Th$ defendant designated what property' be bad given to bis son and stated tbat be bad given it to him, and tbe property was on tbe place where tbe donee and mortgagor lived. — There could have been no more open, practical delivery of possession to tbe mortgagor. He is estopped from now denying tbe gift, having secured tbe supplies advanced upon bis representations and active conduct in tbe matter.
   HARALSON, J.

Tbe first assignment of error is waived by tbe appellant, in tbe argument filed in tbe cause.

Tbe second, — that tbe suit is instituted in the name of tbe partnership and not in tbe names of tbe members of tbe firm, — is bad for two very good reasons, either of which is sufficient. In tbe first place, tbe names of tbe members of the plaintiff firm are set out in tbe detinue affidavit, in tbe summons and in tbe caption of tbe complaint. This complied fully with tbe requirements as to tbe bringing of suits by a partnership.—Moore v. Watts & Sons, 81 Ala. 261; Moore & McGee v. Burns & Co., 60 Ala. 269. In tbe next place, tbe defendant went to trial on a plea to tbe merits, without making objection in tbe court below, to such supposed defect in tbe proceedings, and be mustbebeldto bave waived it,'even if it existed, and can not raise tbe point, for tbe first time, in this court.—Ortez v. Jewett, 28 Ala. 662; Moore v. Watts & Sons, supra.

It was shown, without conflict of evidence, that tbe property sued for, was in tbe possession of tbe defendant, when it was taken into tbe possession of tbe sheriff, at tbe time be served tbe detinue writ; that tbe plaintiffs derived their title to this property under a mortgage executed by Fulwood Foreman, a son of defendant, to tbe plaintiffs, on tbe 15th of January, 1891, to secure a note given by him, on that date, to plaintiffs for $800.00, payable on tbe first of October following, after which date, if not paid, tbe mortgage became foreclosable, and that money and supplies bad been advanced by plaintiffs to tbe mortgagor, to tbe full amount of tbe note and mortgage. Tbe execution of tbe mortgage, which included tbe note, was proved and read in evidence, and tbe identity of tbe property mentioned in it, with that described in tbe complaint, was shown.

It was further shown,- — and there was no conflict in this evidence, — that tbe defendant was present, when tbe mortgage was executed, aiding and procuring it to be taken, and stated, at tbe time, to Enlich "Weil, one of tbe plaintiffs, who drew up tbe mortgage, that be gave tbe property mentioned to bis son,''the mortgagor, for the purpose of bis mortgaging it, to procure supplies with which to make a crop that year; that be also stated to Isadore Weil, another one of the plaintiffs, before tbe mortgage was executed, “that be bad given tbe property to tbe mortgagor, that be might mortgage it for supplies to make a crop, and to do with it as be pleased.”

There was but one witness examined for tbe defense, who stated, on bis direct examination, that the mules belonged to tbe defendant and bis wife, Narcissa; but, on tbe cross-examination be stated, that be was at tbe defendant’s bouse, three years before that, when defendant brought tbe mules home, and be beard him say, be bad bought tbe mules, and what be gave for them, and that this was all be knew about it. This witness further testified, that tbe defendant made a crop with tbe mules in 1890, and that be and bis family lived on tbe same place with tbe mortgagor, in 1891, and bis wife and daughter worked, that year, in bis, tbe mortgagor’s crop.

It is also stated, in tbe bill of exceptions, that neither tbe defendant nor tbe mortgagor were present at tbe trial, and it appears also, that tbe wife of defendant was not examined as a witness.

Tbe defendant, by bis counsel, insists, that tbe effect of tbe evidence was, that tbe property was tbe defendant’s, and that be was simply agreeing for tbe mortgagor to mortgage bis, defendant’s property, and tbat being tbe case, since § 1731 of tbe Code forbids parol mortgages of personal property, tbis one was void as to defendant, and tbe mortgagor hacl no right to convey tbe legal title by mortgage; and, however tbis may be, that it was a question for tbe jury, and not for tbe court to decide.

It is true, as a general proposition, tbat to constitute a gift of personal property, there must be an actual delivery of tbe property to tbe cíonee. Tbe delivery, however, must be in accordance with tbe nature of tbe thing given. When ■reasonably consistent, there should be a manual delivery. "When tbe articles are numerous or bulky, and not easily taken in band, it may be sufficient for tbe donor to point them out to the donee, and allow him to take them. — -Am. & Eng. Encyc. of Law, 1315.

The evidence is, as appears above, tbat defendant said to one of tbe plaintiffs, “be gave tbe property to bis son, Eul-wood, for the purpose of mortgaging it for supplies, for tbat year, to make a crop,” and to tbe other plaintiff, “tbat be bad given tbe property to tbe mortgagor, that be may mortgage it for supplies to make a crop with, and to do with as be pleased.”

Tbe fact tbat be bad given tbe property to bis son, and tbe purpose for which be gave it to him, is here declared. Tbe words, “for tbe purpose,” and “that be may,” mean in order that, so that, be could mortgage it.

As has been before stated, tbe evidence shows, tbat defendant was present, at tbe time the mortgage was executed, and before tbat, bad made these declarations of bis gift of tbe property to bis son, to tbe plaintiffs, in order to induce them to make advances to bis son, and accept tbis mortgage as their security. He was personally interested in procuring tbe transaction to be made, for, as appears, be lived on tbe same place with the mortgagor, in 1891, and bis wife and. daughter worked with bis said son in making a crop, tbat year. Admitting tbat tbe delivery of tbis property by defendant to tbe mortgagor, was not proved in so technical a sense, as to make it a complete gift, as between them, still, as to tbe plaintiff, be is not in a position to dispute the delivery of tbe property to bis son, and tbat be bad a right to give tbe mortgage on it. He made representations to tbe plaintiffs, to influence tbeir conduct, and procured them, thereby, to accept this mortgage and advance their money, and he is precluded from denying his admissions and his acts, made for such purposes, when their denial will operate to the injury of the plaintiffs. In Caldwell v. Smith, 77 Ala. 165, we employed this language, which is especially applicable to the case in hand, “Where a fact has been asserted, or an admission made, through which an advantage has been derived from another, or upon the faith of which another has been induced to act, to his prejudice, so that a denial of such assertion or admission would be a breach of good faith, the law precludes the party from repudiating such representations.”—1 Greenl. Ev. §§ 27, 207; 2 Her. on Est. §§ 725, 726; Am. & Eng. Encyc. of Law, 16; Jones v. McPhillips, 82 Ala. 102; LeGrand v. Euf. N. B’k., 81 Ala. 123.

The Circuit Court committed no error in giving the general charge for the plaintiffs, and the judgment is affirmed.

Affirmed.  