We are satisfied of the correctness of our conclusion that defendant's plea 8 is defective in its omission of any allegation showing that when plaintiff repossessed itself of a part of the goods, as alleged, the other goods were still in defendant's possession, and subject to repossession by plaintiff. The plea exhibits the contract of purchase, showing that the goods were purchased for resale to defendant's customers, and that they would be thus resold in the ordinary course of business. It will not be presumed, in favor of the pleader, *Page 26 that any part of these goods remained unsold; and the burden is unquestionably on him to allege the facts showing the conclusion upon which he relies as a defense to the suit.
Our attention is directed by counsel for defendant to the case of Bowdoin v. Ala. Chemical Co., 201 Ala. 582, 79 So. 4, as in conflict with our holding that the contract herein evidenced a conditional sale, and with the further observation that that case should be overruled if the present decision stands. It will suffice to say that in that case the contract expressly provided that the goods were "shipped on consignment to the customer as trustee for the company" — a provision not found in the present contract. The distinction is clear and decisive, and too obvious to require exposition.
Counsel insist with much earnestness that plaintiff's replication to defendant's plea of non est factum, as to the notes sued on, is not a valid answer to those pleas. The replication is, of course, by way of estoppel. The nature of such a plea has been correctly stated as follows:
"The issue which a plea of estoppel presents is not to determine the truth or validity of the particular facts pleaded, but the right and power of the party to insist upon them. A plea of estoppel is not a plea of confession and avoidance, although it resembles a plea in avoidance in that it alleges new matter. While the plea is usually spoken of as a plea in bar, it is not technically such, although, like a plea in bar, it denies the right of action or defense, by denying the right to assert the facts. So the rule that the pleader, if he does not demur, must either traverse or confess and avoid all the material allegations to which he makes answer, has no application to pleadings in estoppel, which are considered an exception to the rule." 21 Corp. Jur. 1247, § 258.
It is, of course, true that estoppels are grounded on injury resulting from the pleader's reliance upon his adversary's conduct or declarations; and the pleader must show that his position has been so changed by that reliance that he would be substantially prejudiced if his adversary be now allowed to assert and show the contrary. Carter v. Darby, 15 Ala. 696, 50 Am. Dec. 156; Adler v. Pin, 80 Ala. 351, 354; 21 Corp. Jur. 1135, § 136.
The replication here in question is defective in not showing the fact or the threat of such an injury, but no ground of the demurrer points out that defect. The grounds assigned — other than several inapt special grounds — are general only, and are not sufficient, under our rules of pleading, to present the objection.
Counsel cite the cases of Cunningham v. Bragg, 37 Ala. 436, and Harwell, Adm'r, v. Phillips, 123 Ala. 460, 26 So. 501 (to which may be added Myatts v. Bell, 41 Ala. 222), to the proposition that when a partner has retired from the firm, though he is liable for pre-existing debts, he cannot be bound by notes given by the remaining partners in payment or extension of those debts. We are not dealing here with the obligation of a retired partner; but, conceding the analogy, the cases relied on involved no question of estoppel, but merely a joinder of issue on the defendant's plea of non est factum.
On the other hand, this court held, in Grady v. Robinson,28 Ala. 289, that —
"A relinquishment by one ostensible partner to another, of all his interest in the partnership, does not discharge him from liability as a partner to third persons who afterwards deal with the company without notice of such relinquishment."
See, also, Mauldin v. Branch Bank, 2 Ala. 502, where the subject is fully discussed. In such cases, as noted in 20 R. C. L. 982, § 216, "the liability is based on principles of estoppel." The same authority declares:
"Secret articles of dissolution of partnership of which no notice is given will not terminate the liability of each for the acts of the other partners. For example, where no notice has been given, a new note or contract made by one partner in the name of the firm and within the scope of the partnership business operates to bind the firm notwithstanding the dissolution." (Italics supplied.) 20 R. C. L. 966, § 194.
As already observed, this is not the case of a retiring partner, but of a retiring proprietor and his successor in business, both operating continuously under a trade-name which prima facie imported a partnership if there was no incorporation; but the analogy, both legal and moral, is strong and persuasive.
We see no reason for changing any of the views and conclusions originally declared, and the application for rehearing will be denied.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.