The appellee instituted this action against the Bay City Roofing Sheet Metal Works, and "W. B. Paterson and W. J. Nelson as partners," composing the same. Plaintiff stated its case in common counts. The court, trying the case without jury, rendered judgment against the defendants. W. B. Paterson alone appeals and assigns errors.
Through plea 2 Paterson set up that he was not a member of the partnership at the time in question. In replications A1 as amended and A2 as amended the plaintiff set up an estoppel against Paterson to assert his nonmembership in the concern. The report of the appeal will reproduce these replications. Paterson's demurrers to these replications were overruled. These rulings are assigned for error, but they are waived by a failure to insist upon them on appeal. So the question of the sufficiency of these replications is not considered. They are to be accepted as efficient in raising and defining, for this review, the issues tendered by their averments. Paterson joined issue on these replications.
The only errors assigned and urged on brief for appellant relate to rulings on the admission of evidence touching the issue of partnership vel non on the part of Paterson in respect of that status, effect upon liability to the plaintiff, a third party, for the goods sold, etc., to recover for the value of which the action was brought.
On March 28, 1914, the appellant indorsed, over his own signature, on a letter from R. G. Dun Co. to him, the following: "I acknowledge my connection as above." This letter read:
"It is claimed, or otherwise reported, that you are a general partner in the firm of Bay City Roofing Sheet Metal Works (not inc.), doing business at Mobile, Ala., and as such general partner liable for all the debts and obligations of the said firm. Please inform us below whether you acknowledge such general partnership."
Appellant testified as follows:
"Witness knew that at the time he wrote on the bottom of the above-mentioned letter that he was giving to the trade a statement that he was a partner in the Bay City Roofing Sheet Metal Works. * * * Witness was, at the time he received the letter from Dun Co. dated March 23, 1914, financing the Bay City Roofing Sheet Metal Works, and knew, to a dollar, what they owed, and knew, when he received said letter and made the statement he made thereon, that the purpose of that statement was to give to the trade generally knowledge as to who composed that company, and under those circumstances he signed the statement that he was a partner and gave it to Dun Co."
It thus appears that at that time Paterson unequivocally admitted, fully knowing the purpose and result of the statement, his relation as a partner to the concern. The letter and the indorsement antedate the oldest item of the account, and the evidence leaves no doubt that in the sale of the goods to this concern the plaintiff relied on Paterson's relation as a partner. Until the contrary appears, a partnership once shown to exist will be presumed to have continued. Joseph v. Southwark, 99 Ala. 47, 51, 10 So. 327; Letson v. Hall,1 Ala. App. 619, 623, 55 So. 944; 22 Ency. of Law, pp. 49, 50; 30 Cyc. p. 403.
Where the controversy is between a stranger and the ostensible firm, or one sought to be charged as a partner therein, the utmost strictness of proof is not required to charge persons as partners. Cain Lumber Co. v. Standard, etc., Co., 108 Ala. 346, 18 So. 882. In that character of controversy, estoppel in favor of the creditor of the firm may be established by evidence directed to showing that such person or persons acted as partners; that by their habits and course of dealing, conduct, and declaration they induced the creditor to deal with them as such, in good faith. Cain Lumber Co. v. Standard, etc., Co., supra.
Complaint is made of the reception of evidence narrative of the appellant's alleged acts in signing or countersigning checks issued by the Bay City Roofing Sheet Metal *Page 473 Works. Since the act of signing or counter-signing the checks was a collateral matter, directed to the proof of appellant's real or apparent relation to the concern, it was not necessary to introduce the checks as the best evidence in the premises. 6 Mich. Dig. Ala. Rep. pp. 151-2. The assignments of error based on the reception of this evidence are without merit.
As will be noted by reference to the allegations of the mentioned replications (the sufficiency of which against demurrer is not presented for review), these circumstances are enumerated as conducing to disclose appellant's connection with the concern, or a course of conduct or silence on his part that was calculated to induce a stranger, acting in good faith, to deal with the concern as if appellant was a partner therein: (a) The use of stationery on which appellant was named as a party in interest; (b) the reports of Dun and Bradstreet, reporting agencies that give information to the trade, wherein it was recited that appellant was one of the partners of the metal works; (c) city directories of Mobile showing that the metal works was composed of appellant and others; and (d) advertisements in the newspapers of Mobile bearing the like information. Without regard to the independent legal efficacy or materiality of these circumstances, either to prove of themselves the existence of a partnership of which appellant was asserted to be a member, or to raise an estoppel against appellant to dispute, as against a stranger creditor, the existence of his connection with the concern, it is manifest that the result of the recital of these circumstances in the replications rendered proof of them material, and also admissible. Postal Tel. Co. v. Lenoir, 107 Ala. 640, 644,18 So. 266.
In this connection it may be well to state that there was evidence from which it might have been reasonably found that the appellant knew of the use of the stationery and of the existence of the publications; that appellee relied on the status of fact they tended to evidence; and that appellant took no effective steps to repudiate them so as to deprive a stranger (appellee), then and thereafter dealing with the concern, of a continuing right to rely on appellant's connection therewith. Joseph v. Southwark, supra; Humes v. O'Brien, 74 Ala. 64; Cain Lumber Co. v. Standard, etc., Co., supra. W. J. Nelson, who was referred to in the publications and on the stationery as a proprietor of the concern, along with appellant, and who more immediately conducted the business, was permitted, over appellant's separate objection, to testify that he gave the information borne by the directories at the office of the concern. If, as phases of the evidence up to that point went to show, appellant had been in fact, or was in fact, a partner with Nelson, the substance and source of the information thus given was admissible, notwithstanding appellant himself may not have known of its communication. Shackelford v. Williams, 182 Ala. 87, 62 So. 54; Humes v. O'Brien, 74 Ala. 67. There is no merit in assignments 17, 19, 20, and 22.
On August 3, 1916, appellant was served with process from the law and equity court of Mobile in an action brought by the Slatington-Bangor Slate Syndicate, a corporation, against appellant and Nelson as partners composing the Bay City Roofing Sheet Metal Works. In rebuttal, the appellee was permitted to introduce the summons and complaint and the sheriff's return of service of the process on this appellant. On appellant's cross-examination he testified, in effect, that he remembered nothing about that suit, and gave no attention to it, took no action in respect of its or his defense thereto. These papers, with the service of their process upon appellant, afforded some evidence of appellant's actual acquiescence in the continued general acceptance of his previously avowed relation as a partner in the concern. If he was not then a partner, it is reasonable to suppose, at least until otherwise explained, that, when so formally impleaded in that relation, he would have taken some appropriate steps to deny or to repudiate its existence.
The assignments of error urged in the brief are without merit.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.