Action on account, account stated, and for goods, etc., sold, instituted by the Southern Tire Accessories Company (now a bankrupt) against E. W. Wilson, individually and as a member of the firm styled "Day and Night Auto Repair Company." The trial court gave the general affirmative charge for the defendant.
That the goods described in the evidence were sold by the tire company to the concern styled as stated was established. The issue chiefly contested was whether E. W. Wilson was a partner with one Vann in the so-styled firm. There was evidence tending to show that Wilson was a partner with Vann in that concern. Not only was there positive testimony through Wilson's declarations, designed to show that to have been his relation to the enterprise, but also circumstances, including his own acts, among them the renting of a place to conduct the business, its conduct therein, and the payment of indebtedness incurred by the concern, which consisted alone with that relation, were disclosed by phases of the evidence. Paterson v. Mobile Steel Co., 202 Ala. 471, 80 So. 855; Cain Lumber Co. v. Standard, etc., Co., 108 Ala. 346, 18 So. 882. The court erred in giving the general affirmative charge at defendant's instance. Under the evidence, the plaintiff was not due affirmative instruction. The practice pursued in granting defendant's motion to exclude all of plaintiff's evidence has been repeatedly condemned here. McCray v. Sharpe, 188 Ala. 375,66 So. 441, and Stewart v. Ransom, 200 Ala. 304, 76 So. 70, among many others. In this jurisdiction such an instruction cannot be properly given when there is any evidence or reasonable inference from evidence tending to establish the theory against which the instruction would conclude. The books abound in illustrations of this rule.
Upon the introduction of testimony tending to show that Wilson was a partner, the orders for the goods would have been admissible in evidence. In excluding these orders the court doubtless gave effect to the view that at that stage no evidence had been introduced tending to show Wilson's relation as partner to the alleged firm.
The defendant could not be justly personally concluded, in any manner or degree by the proceedings in the attachment suit before the justice of the peace, culminating in a personal judgment, until the notice provided by law was shown to have been given him. There was no evidence of service of summons upon Wilson, and hence the court did not err in excluding the justice's judgment, purporting to conclude to personal liability of Wilson in an action against him, Vann, and the "repair company" on an account.
Unless Wilson made or authorized to be made to Dunn and Bradstreet a report *Page 169 or statement affirming or admitting his relation as a partner in the repair company, the conclusion of those agencies that he was a partner was inadmissible in evidence to support the affirmative of the issue of partnership vel non. The proffered testimony of mercantile custom to consult those agencies or their publications before selling to the trade was likewise inadmissible for the purpose of showing that, in making these sales, this seller relied upon such statements or reports of Wilson's relation as a partner.
The report of the appeal contains plaintiff's special requests for instructions numbered 2 and 4. They were refused. They were sound expositions of the principles, to which they refer. Cain Lumber Co. v. Standard, etc., Co., supra; Paterson v. Mobile Steel Co., supra. If on the trial to recur there is evidence tending to show that these sales were made in reliance upon that apparent relation of Wilson to the concern, the principles these special requests illustrate should be stated for the jury's advice.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.