Summary
In Tapp v. Dibrell, 134 N.C. 546, 548, 47 S.E. 51, 51 (1904), plaintiff Tapp testified that defendants Carrington and Dibrell were partners, "that he talked with Carrington in August, 1902, and said that he wanted to settle the claim but he would be liable on garnishment."
Summary of this case from Simons v. GeorgiadeOpinion
(Filed 5 April, 1904.)
1. EVIDENCE — Admissions — Partnership.
Where there is evidence of a partnership, admissions by one partner are competent in an action against the partners for a partnership debt.
2. EVIDENCE — Admissions — Compromise and Settlement.
An offer to pay a part of a claim, contending that the other part had been paid, is competent to establish the debt and is not objectionable as an offer of compromise.
3. GARNISHMENT — Parties — Corporations — Partnerships.
Where tobacco was sold by a corporation to a firm, garnishment levied against the buyer as a corporation on a debt alleged to be due to the seller as a partnership is no defense to an action for the price of the goods sold.
(547) ACTION by L. P. Tapp and another against R. L. Dibrell and another, heard by Judge W. R. Allen and a jury, at September Term, 1903, of LENOIR. From a judgment for the plaintiffs the defendants appealed.
N. J. Rouse and Y. T. Ormond for the plaintiffs.
Loftin Varser for the defendants.
The plaintiffs, L. P. Tapp and J. W. Grainger, as assignees, sued to recover of the defendants, R. L. Dibrell and A. B. Carrington, trading under the firm name and style of Dibrell Brothers, an account of $1,120.80 for certain tobacco sold and delivered by their consignor to W. C. Thomas Tobacco Company, a corporation duly incorporated and organized under and pursuant to the laws of this State.
The defendants deny that they, as partners, purchased any tobacco of the W. C. Thomas Tobacco Company, but aver that a corporation duly incorporated and organized pursuant to the laws of Virginia as Dibrell Brothers purchased certain tobacco of a co-partnership composed of W. C. Thomas and the plaintiffs Tapp and Grainger, the price of which was $1,111.44. They deny the assignment of the account. They further say that the Hoge-Irvin Tobacco Company, a corporation chartered and organized in the State of Virginia, attached $215.50 of the proceeds of said tobacco in the hands of Dibrell Brothers, and has obtained judgment in said attachment; that one R. R. Traxton also attached of said proceeds $20.50, and has obtained judgment for said amount; that Dibrell Brothers have tendered to W. C. Thomas Company a check for the balance of the proceeds of said tobacco. The defendants also set up a counterclaim for $400 damages for loss suffered in defending said attachment proceedings.
In response to issues submitted the jury find that Dibrell Brothers was a corporation at the time of the (548) purchase of the tobacco; that the tobacco was not purchased for Dibrell Brothers as a corporation; that both the defendants were indebted to the plaintiffs in the amount named in the complaint.
The plaintiffs introduced the articles of incorporation of the W. C. Thomas Company, to which there was no objection. The plaintiff Tapp testified that he never knew of any such firm as W. C. Thomas Company; that the tobacco represented by the account sued on was sold by the W. C. Thomas Company to the defendants through A. B. Carrington, one of the defendants, and delivered to the Hoge-Irvin Tobacco Company for the defendants; that he had known Dibrell Brothers since 1895. A. B. Carrington and R. L. Dibrell were members of the firm, and that Carrington was served with summons here; that he talked with Carrington in August, 1902, and said that he wanted to settle the claim but he would be liable on garnishment. This was objected to by the defendants, and to the admission of the testimony exception was taken.
We cannot see any valid objection to this testimony. It was the declaration of one of the defendants. It was certainly admissible against him, and if there was a partnership, against his co-partner. It was not offered to prove a partnership. The witness had testified to the partnership. While this was not conclusive it was a sufficient basis to admit the declaration of Carrington. Of course if the jury did not find that Carrington and Dibrell were partners in this transaction the declaration was admissible only as against Carrington. The learned counsel in their brief do not rest their exception upon this ground, but say that it is not admissible as an offer to compromise. It was not offered for that purpose and was not capable of that construction. In view of the answer we cannot see that it (549) was of any importance in any point of view.
The witness further testified that he had about the same conversation with the defendant Dibrell; that neither of them denied that "Dibrell Brothers," partners, owed the claim. The plaintiffs introduced the following:
"Cable Address: Dibrell, Danville. DIBRELL BROS., Leaf Tobacco Brokers.
"DANVILLE, VA., U.S. A., 12 May, 1902.
"MESSRS.W. C. THOMAS TOBACCO CO., Kinston, N.C.:
"Your valued favor of the 10th inst., returning our check for $774.94 tendered W. C. Thomas Company, is to hand. We note carefully your remarks as to the position you take in regard to the matter. We regret very much that we are not at liberty to accede to the demands of the W. C. Thomas Company for the money claimed to be due them by us, and we wish to assure you that it is in no spirit of vindictiveness that we refuse the demand, but only for our protection and by the advice of our attorneys. We believe we have made our position very clear to you, but we repeat that we do not know the W. C. Thomas Tobacco Company in this transaction, but only W. C. Thomas Company. We will be compelled to pay the amount of garnishments when ordered to do so by the court, and we hope that you will see fit to have some one to represent you when the case comes up in July corporation court.
"Very truly yours,
"DIBRELL BROS."
Objection was made to the manner of proving the assignment of the account. We concur with his Honor's ruling in this respect.
The defendants introduced a copy of articles of incorporation of Dibrell Brothers, duly certified, and a certified copy of the proceedings in attachment in the case of the Hoge-Irvin Tobacco Company, issuing out of the corporation court (550) of Danville, against W. C. Thomas, L. P. Tapp and J. W. Grainger, co-partners, trading under the firm name and style of W. C. Thomas Company. Notice of attachment was served on "Dibrell Brothers, a corporation, as being indebted to the defendant partners." The defendants also introduced the proceedings in attachment sued out by L. P. Morgan Company against W. C. Thomas for $25.50, containing this endorsement: "The plaintiff herein designated R. L. Dibrell and A. B. Carrington, partners in business as Dibrell Brothers, as being indebted to or having in their possession effects of the defendant W. C. Thomas." Also a proceeding against W. C. Thomas Company by R. A. Craxton, upon which is the same endorsement; also a similar proceeding by Reagan, Walton Davis, with the same endorsement. The witness Tapp said that he received notice of the attachment through the mail. His Honor held that the attachment proceedings should not be introduced and used to decrease the amount of the plaintiff's claim. To this ruling the defendants excepted. The value of this exception is dependent upon the correctness of his Honor's charge and the finding of the jury upon the second issue. He told the jury that the burden was upon the plaintiffs to satisfy them by the greater weight of the evidence that the defendants were a partnership at the time of the purchase of the tobacco referred to in the complaint; that if they found that Dibrell Brothers was a corporation they might consider further whether the tobacco was bought for the corporation. The jury having answered the second issue as set out in the record, it was entirely immaterial whether the attachment proceedings in Virginia were valid or not. They were against W. C. Thomas Company, and there was not a scintilla of evidence tending to show that the plaintiffs were ever members of such a co-partnership or that any such ever existed. All the evidence was to the effect that the tobacco was purchased of the corporation, the W. C. Thomas Tobacco Company. (551)
The defendants except to his Honor's charge, for that there was no evidence that there was any such partnership as Dibrell Brothers. This exception presents the vital question in the case. We do not think it can be sustained. The plaintiff Tapp swore that they were partners. The letter introduced by the plaintiffs was competent to be considered by the jury upon the question. The record in three of the attachment suits shows that they were garnisheed as partners. In their answer they say that they have suffered loss, and set up a counterclaim. Of course this must be as partners, because the corporation was not sued. We think there was evidence, competent and sufficient to be considered by the jury, tending to show a partnership. This having been found, the attachment proceedings against W. C. Thomas Company could not affect the right of the plaintiff. It is singular, in the light of the testimony of Rouse, that the defendants permitted judgment to be entered against them as garnishees when they could so easily have defended themselves. It may be that some light is thrown upon the matter by reference to the fact that "A. B. Carrington, agent for and a stockholder in the Hoge-Irvin Company," made the affidavit in the attachment proceeding. This record presents the singular spectacle of both parties supposing that they were dealing with partnerships, whereas, as the jury find, the defendants were trading as a partnership with a corporation. The confusion and litigation show the wisdom of our Corporation Act requiring the names of all corporations to end with the word "Company." It would safeguard persons dealing with trading or mercantile corporations to require by statute that all stationery, advertisements and contracts should contain the word "Incorporated."
We do not find any error in his Honor's rulings or instructions. If the defendants have suffered loss by the attachment (552) proceedings it is the result of their refusal to defend themselves on the return of the garnishment. The judgment is
Affirmed.