said railroad in such a manner, and to such an extent, as to make the crossing of said railroad by each of said streets as ample and as convenient as it is possible to make them, consistently with the running and use of said railroad, and this grading, filling up, and leveling to extend to the width of twenty feet, and to be always kept up by the company; provided, however, that a bridge, if deemed advisable by both parties, may be built by the company across the railroad on Washington street." The railroad company paid the money agreed to be paid, but failed and neglected to do the work on the streets they had agreed to do. Hooper filed a bill to enforce a vendor's lien, and to recover the damages he alleged he had sustained by the railroad's failure to keep its contract in reference to the streets. This court held he was entitled to the relief he prayed. We said: "Entering upon the lands, acquiring possession by contract with the appellants, the relation of the parties is that of seller and purchaser. If the company had stipulated to pay, and the appellants had agreed to accept, a specific sum of money, as just compensation for the lands taken, that sum would, of necessity, have embraced all compensation the appellants could have claimed for the interruption or obstruction of the highways leading to and from these lots, or because of the diminished value of the lots, from any cause, in the appropriation of parts of them to the uses of the company. That sum would have been as essentially the purchase money of lands, or of a right and interest in and to lands, as when, between natural persons, there is a bargain and sale for a specified price. What difference is there, in right and principle, when a specific sum is promised and paid as partial compensation, and there is a promise to repair an injury by work and labor, which lessened the value of the remaining lands of the owner, for which he is entitled to compensation? If the injury is not repaired, the owner suffers loss, and the company gets the land without making the compensation justly due,-without paying the consideration upon which it was let into possession. The real foundation of the lien of a vendor for the purchase money of lands is that it is against good conscience for one man to get and keep the lands of another without paying the consideration promised to be paid for them. For the performance of the contract by the company in all its parts, it is evident the appellants relied, and the company intended they should rely, on the lands taken as a security. The retention of the legal title is very strong, if it is not conclusive, evidence of this reliance. The terms of the contract are conclusive. It is only in return for the performance by the company of the contract that the appellants promise to give the company 'the right to run their road through said block, on the roadbed as at present graded, and to the use v.14so.no.15-50 of all of lot number four on the north side of said railroad track, and the right of way on lot number four to the extent of twentyfive feet from the centre of said railroad track.'" The case of Hooper v. Railroad Co., supra, is supported by Cooper v. Railroad Co., 85 Ala. 106, 4 South. 689; Walker v. Railway Co., L. R. 1 Eq. Cas. 195; Pierce, R. R. p. 169, note 5; Railroad Co. v. Lewton, 20 Ohio St. 401; Trustees, etc., v. Lynch, 70 N. Y. 440. The following decisions of this court assert a kindred principle: Neel v. Clay, 48 Ala. 252; Coal Co. v. Long, 91 Ala. 538, 8 South. 765; Smith v. Vaughan, 78 Ala. 201. In the Bridgeport Land & Imp. Co. v. American Fireproof Steel Car Co., 94 Ala. 592, 10 South. 704, the case of Hooper v. Railroad Co. is referred to without express dissent. But there is a statement, not necessary to the decision rendered, which can hardly be reconciled with the Hooper Case. That statement is as follows: "In the case at bar, if the plaintiffs had obtained a judgment in a court of law against the respondents for a breach of contract for failing to perform the covenants agreed to as the consideration for the conveyance of the land, and there were no other difficulties in the way, we hold a vendor's lien could be enforced against the land to secure the payment of the judgment." In that case there was a reason for requiring that the amount of damages should be first ascertained by the verdict of a jury. The nature of the contract and the consequence of its breach were such that the amount of the injury could not be measured by any money standard. In the case we have in hand, like the case of Hooper v. Railroad Co., the amount of damage is the diminution in value of the land retained by the vendor, caused by the purchaser's violation of his contract; in other words, the comparative value of the land with and without the fences, stock gaps, and road crossings. My own wish is to adhere to the decision rendered in the case of Hooper v. Railroad Co.. 69 Ala. 529. That decision was rendered 12 years ago, and has been quoted with apparent approval. Cooper v. Railroad Co., 85 Ala. 106, 4 South. 689. See, also, Thornton v. Railroad Co., 84 Ala. 109, 4 South. 197. My brothers, however, hold that, in a case like the present, a bill will not lie to enforce a vendor's lien on the facts set forth in this bill. The result is that the decretal order of the district court must be reversed. We all agree that, in a case like the present, appropriate relief can be sought for in an action at law for damages, or by injunction to restrain the use of the right of way until the terms of the contract are complied with. Railroad Co. v. Jones, 68 Ala. 48, 70 Ala. 227; Thornton v. Railroad Co., 84 Ala. 109, 4 South. 197; Cooper v. Railroad Co., 85 Ala. 106, 4 South. 689; Coal Co. v. Long, 91 Ala. 538, 8 South. 765; Jersey C. & B. R. Co. v. Jersey, C. & H. H. R. Co., 20 N. J. Eq. 61; Cosens v. Railway Co., 1 Ch. App. 594. Reversed and remanded. RICHMOND & D. R. CO. v. JONES. 1. An objection that causes of action were improperly joined cannot be raised for the first time on appeal. 2. An objection to the sufficiency of the complaint cannot be raised for the first time on appeal. 3. The action of the trial court in overruling a motion for new trial cannot be considered, where there is no bill of exceptions. Appeal from circuit court, Jefferson county; James J. Banks, Judge. Action by William H. Jones against the Richmond & Danville Railroad Company to recover damages for failure to deliver property shipped at different times, under a contract with the plaintiff. There was judgment for plaintiff, and defendant appeals. Affirmed. The record contains no bill of exceptions, and there is presented for review in this case, only the rendition of the judgment of the lower court, which is here assigned as error. James Weatherly and Z. T. Rudolph, for appellant. Cabaniss & Weakley, for appellee. justice's court. This additional count, how ever, it is contended, is in form ex delicto. which could not be joined with the original count on the same cause of action, which was ex contractu. But, whether it was subject to that criticism or not, it is unnecessary to decide, even if such misjoinder existed. since there was no objection raised for its alleged misjoinder with the others. On the trial of causes appealed from jus tices' courts, where the sum exceeds $20, the rule is, that a declaration or statement of the cause of action must be filed in the appellate court. 1 Brick. Dig. p. 114, § 74. This rule, however, can have no application to a cause where a sufficient complaint had already been filed therein, in the justice's court, which complaint has, with the other proceedings, been sent in a certified transcript of the record to, and filed in, the appellate court. The trial may there proceed. and be had on such original complaint, if sufficient, as well as on a new one. It can apply only to those cases on appeal, where no sufficient complaint or statement of the cause has been filed in the justice's court, or, if filed, for any cause, has not been certified in the transcript of the record to the higher court. Littleton v. Clayton, 77 Ala. 571. But, in the absence of such complaint or statement, where one is required by the rule to be filed, after judgment by nil dicit. or on verdict, without objection on account of a failure to file it, the defendant will be presumed to have waived it. Heyman v. McBurney, 66 Ala. 511. In this case, it appears, all papers pertaining to the cause, were sent to the clerk of the circuit court, by the justice of the peace, and a transcript of the record and proceedings before him in the cause was certified by him to the clerk, and the cause was tried without objection, in any form, to the complaint. Defendant cannot be heard to raise objections to it, for the first time, in this court. Moore v. Coolidge, 1 Port. (Ala.) 280; Hays v. Myrick, 47 Ala. 335, 345; Drake v. Johnson, 50 Ala. 3; Rich v. Thornton, 65 Ala. 310; Hayes v. Solomon, 90 Ala. 522, 7 South. 921. HARALSON, J. This suit was commenced before a justice of the peace, to recover damages for the failure to deliver property shipped at different times and under different contracts to plaintiff, doing business under the firm name of W. H. Jones & Co. There were two counts in the complaint, on two distinct causes of action, one for a failure to deliver a car load of potatoes, "received by defendant as a common carrier, on, to wit, the 12th of January, 1892, to be delivered to the plaintiff," and the other, for a failure to deliver another car load of potatoes, "received by it as a common carrier, on or about the 1st day of February, 1892, to be delivered to the plaintiff." Each count laid the damages at $50, and was in form as prescribed by Code, p. 793, form 15. A trial was had between the parties, and a judging of the court cannot be considered. Lein ment was rendered, on the 20th April, 1892, against the defendant for the sum of $100. From this judgment, the defendant prosecuted an appeal to the circuit court, in which court a judgment was also rendered against the defendant for $100. When the cause reached the circuit court, the plaintiff filed what is styled in the record, "Complaint in the Circuit Court," which was intended, evidently, as an additional count on the same cause of action, as that sued on, in the second count of the original complaint in the Judgment was rendered on the 9th day of January, 1893, and a motion to set aside the judgment was made on the 25th of March following, which was overruled. There is no bill of exceptions in the case. This rul kauff v. Advancing Co., (Ala.) 12 South. 918. Affirmed. SIMMONS et al. v. TITCHE et al. 1. A judgment by default in favor of a firm is erroneous where the names of the persons composing such firm do not appear. 2. Where an action for more than $20 is commenced in justice's court without a sufficient complaint being filed, and it is taken to the circuit court, a judgment for plaintiff by default in the circuit court, without a complaint being filed therein, is erroneous. Appeal from circuit court, Jefferson county; James J. Banks, Judge. Action by Titche Bros. against M. R. & L. M. Simmons on a note, commenced in justice's court, and removed by certiorari to the circuit court. From a judgment by default in favor of plaintiffs, defendants appeal. Reversed and remanded. The names of the persons composing the plaintiff firm, nowhere appear in the proceedings. The complaint in the justice's court states that "the plaintiff claims of defendant the sum of $76.98, due by the waive note made by defendant, the day of with 189-, and payable on the interest; and plaintiff avers, that as a part of said note, the defendant waived all his right to claim personal property as exempt. Plaintiff avers, that as a part of said the defendant agreed to pay a reasonable fee, which he also claims, $15.00 dollars. W. T. Hill, Plffs.' Attorney." This paper purports to have been served by the constable on both the defendants, on the 1st of September, 1891. And, the next thing appearing, is an execution issued by the justice, on the 6th of November, 1891, against the defendants, in favor of Titche Bros., on a judgment for $88.50, rendered, as therein stated, on the 6th of October, 1891. Afterwards, the defendants applied for and obtained a writ of certiorari and supersedeas, by which the case was carried to the circuit court. No complaint was filed in the cause after it reached that court. The justice, so far as appears, made no return to the writ of certiorari, other than a brief statement of what appeared on his docket, which he certifies to be a complete and exact transcript of his docket, in the cause. How the paper copied above, purporting to be a complaint filed in the case before the justice, got into the circuit court does not satisfactorily appear. It is not marked as filed in the cause. On the 17th of November, 1892, as the judgment entry in the circuit court recites, the plaintiffs came "by their attorneys, and the defendants saying nothing in bar or preclusion, as to plaintiffs' right of recovery," it was considered that the plaintiffs ought to recover, but not being advised of the just amount of damage sustained, the court proceeded to hear the evidence, without the intervention of a jury, and assessed the damages at $96.21. Judgment was thereupon rendered against the defendants and S. J. Darby, their surety on the appeal and supersedeas bond, for that amount and costs. The entry then recites, that against the judgment and the execution to be issued thereon, there is no exemption of personal property of the defendants and S. J. Darby, the surety on the appeal bond. The appeal is prosecuted by the parties to the judgment, and the errors assigned are (1) that the court erred in rendering judgment without a complaint being on file disclosing a cause of action; (2) because the court entered judgment in favor of appellees in their firm name; (3) in rendering judgment against the surety on the appeal bond, adjudicating his right of exemptions; (4) the court erred in the judgment rendered; and (5) in rendering a judgment by default, when there was no party plaintiff. S. J. Darby, for appellants. HARALSON, J. The general rule is, that all partners must join as parties plaintiff in an action to enforce a claim in favor of a partnership, and cannot sue in their copartnership name. Their individual names are required to be stated, (17 Am. & Eng. Enc. Law, 1236;) and, to render a judgment by default in the name of a copartnership, individual names not appearing, is error for which a judgment will be reversed. If a defendant goes to trial, however, on a plea to the merits, he waives it, and cannot raise the question for the first time in this court. Moore v. Watts, 81 Ala. 265, 2 South. 278; Moore v. Burns, 60 Ala. 270; Lanford v. Patton, 44 Ala. 584; Reid v. McLeod, 20 Ala. 576. In this case, it nowhere appears who the individual members of the plaintiff firm were, or that it was a corporation, or, that but one person was doing business under that name, which, of itself, implies two or more persons as copartners. A judgment by default, in our practice, is a judgment for want of an appearance; or, if the defendant appears and does not plead, or appears and pleads and withdraws the plea, the judgment to follow is properly nil dicit. Grigg v. Gilmer, 54 Ala. 430; Stewart v. Goode, 29 Ala. 477. The judgment entry negatives the idea that the defendants appeared, and there is nothing to show that they did appear or plead, yet, the entry recites that the defendants said "nothing in bar or preclusion," the form of a nil dicit judgment. But this is repugnant to the other recitals, and to the record, and must be taken as a clerical misprision for a judgment by default. It is a mere matter of form which yields to facts. Glass Co. v. Paulk, 83 Ala. 404, 13 South. 800; McCaskey v. Pollock, 82 Ala. 176, 2 South. 674; McLaren v. Anderson, 81 Ala. 106, 8 South. 188; Land Co. v. Morgan, 88 Ala. 434, 7 South. 249; 1 Brick. Dig. p. 776, § 41. The judgment rendered, we must hold, was erroneous, because rendered in the name of a firm, without the names of the partners being set out. On the trial of a cause appealed from the justice's court, or carried from such court by certiorari, to the circuit court, where the sum exceeds $20, when a sufficient complaint has not already been filed in the justice's court, which has been certified in a transcript and filed in the circuit court, on which the parties may try the cause, a complaint or statement of the cause of action must be filed in the latter court, and it is error to render Judgment without one, unless the defendant has done something to waive it. 1 Brick. Dig. p. 114, § 74; Railroad Co. v. Jones, 14 South. 786; Elmore v. Simon, 67 Ala. 528; Heyman v. McBurney, 66 Ala. 511; Arundale v. Moore, 42 Ala. 482. The judgment was rendered in the circuit court without any complaint being filed in that court at all. If we presume, as we may, that the one we find in the record, purporting to have been filed in the justice's court, found its way properly into the appellate court, it was wholly insufficient, to support a judgment. It is unnecessary to consider any other question. Reversed and remanded. CHARGE OF INCOMPETENCY IN BUSINESS. 1. A publication to the effect that plaintiff was discharged from the superintendency of an office of the Farmers' Alliance "because of a heavy loss in the business," and that the books of such office, "when balanced, showed a net loss of $2,000, while" another office showed a net profit of $5,000 on a much smaller business, and that "the showing simply proved" plaintiff "to be a man of small business capacity," cannot be construed, by means of an innuendo, to charge dishonesty in conducting the office. 2. Such publication is, however, libelous per se, as reflecting on plaintiff's business capacity. Appeal from city court of Montgomery; Thomas M. Arrington, Judge. Action by George F. Gaither against the Advertiser Company for libel. From a judgment for defendant, plaintiff appeals. Reversed. Richardson & Reese, for appellant. J. M. Faekner and W. S. Thorington, for appellee. STONE, C. J. The publication charged in the present suit to be libelous is set out in the several counts of the complaint. Omitting the innuendoes, the part complained of reads as follows: "We don't know, but maybe some of the Alliance leaders can furnish the desired information. Editor Advertiser. "Much has been given to the public of late about the shortage of Business Manager Wynne of the Georgia Alliance Exchange. I have seen a statement to the effect that Wynne's bondsmen will not make the shortage good, because, when they went on his bond, the high Alliance officials assured them that his accounts were straight with the books, when, as a matter of fact, he was behind with the music then. To a man up a tree, it looks like they have got a 'pretty mess' over in Georgia; but that is Georgia's business, and Georgia will have to look after it. Let us get nearer home. Moreover, I have ascertained from the very best authority that Mr. Gaither was 'fired' from the office of general manager because of a heavy loss in the business of the office. My infor mation is that the Birmingham office, with Mr. Gaither in charge, did a business last year of about $80,000, and the books, when balanced, showed a net loss of about $2,000, while the branch office at Montgomery, on a business of about $25,000, showed a net profit, over and above expenses, of from $4,000 to $5,000. It seems quite likely that a showing of that sort knocked Mr. Gaither out of office, rather than a third-party tendency, which is nothing new or novel to him. The showing simply proved Mr. Gaither to be a man of small business capacity." The complaint contains three counts, each setting out the language copied above, and charges that said publication was made by the defendant corporation on August 20, 1891. The first count avers that the publication was "defamatory," and was made by "defendant, wickedly intending to injure the plaintiff." It is also averred in the body of this, the first, count, referring to the Adver tiser's said article and its contents, that they were "false, scandalous, malicious, and defamatory." The second count charges that the publication was "falsely and maliciously” made. The third count contains the charge that the defendant, "wickedly intending to injure the plaintiff, * * did maliciously publish, of and concerning the plaintiff, a certain false, scandalous, and defamatory libel, containing, among other things, the false, scandalous, and defamatory things," which are set out above. Each of the counts contains many innuendoes, the gravest of which is that the article complained of as libelous charges the plaintiff with embezzlement. The part of the complaint in which this averment is found, quotes from the Advertiser's article, copied above, and inserts in parenthe ses what it assumes is the meaning. We copy from an averment found in the complaint: "Moreover, I have ascertained from the very best authority that Mr. Gaither (meaning the plaintiff) was 'fired' (meaning thereby that the plaintiff was discharged) from the office of general manager because of a heavy loss in the business of the office, (meaning thereby that plaintiff was guilty of embezzlement as general manager of said Farmers' Alliance Exchange of Alabama.)" There was a motion in the city court to strike out parts of the complaint which were inserted in the form of innuendoes, for the alleged reason that they sought to give to the language of the publication a meaning which its terms did not, and could not, justify. There was also a demurrer, assigning the same and other grounds. The city court overruled the motion to strike out, but sustained the demurrer to each count of the complaint. There being no amendment of the complaint made or offered, the judgment | decide whether such meaning is truly ascribed for defendant was made final, and from that judgment the present appeal is prosecuted. Are the words of the Advertiser's article actionable per se? Do they, by their terms, give a right of action? We are not able to perceive that the language of the Advertiser's article, copied in the opening of this opinion, per se makes, or even insinuates, the charge that Mr. Gaither had been guilty of embezzlement or of any other illegal or immoral act. There is not an intimation that he had been guilty of intentional wrong. All that the words naturally import is that, under Mr. Gaither's management, the Alliance Exchange at Birmingham, in a business of $80,000, had sustained a net loss of about $2,000. The want of success of that office was contrasted with the success of another, in which it is said a handsome net profit was realized. Mark the expression, "net loss," "net profit." The losses exceeded the gains in the one; the gains exceeded the losses in the other. Is a want of business success, or, rather, the imputation of such want, a charge of dishonesty or of immorality? Is every failure to make a profit in business evidence, or does it raise the presumption, of dishonesty? If so, business enterprises are a perilous adventure. But, if the words employed were of such uncertain import as to leave the writer's meaning in doubt, there are expressions in the article which repel all inference of an intention to impute criminality. "The books, when balanced, showed a net loss." When books are "balanced," or can be balanced, does it not imply that the assets received are accounted for? Can there be a balancing of the books while assets, or any part of them, remain unaccounted for? The books may fail to show a profit. Bad debts, excessive expenses, and other operating causes may lead to failure in business, while of themselves they do not prove dishonesty; but, when the books balance, prima facie they show all assets are accounted for. But a stronger argument is found in the language of the concluding sentenee of the article. That language is that "the showing simply proved Mr. Gaither to be a man of small business capacity." The natural, unaided import of this language was to assail Mr. Gaither's business capacity, not his integrity. Of themselves, the words charge no crime. Is the plaintiff's complaint, in the respect we are considering, made good by the innuendoes? What is the office of the innuendo? "An innuendo may not introduce new matter, or enlarge the natural meaning of words. It must not put upon the defendant's words a construction which they will not bear. It cannot alter or extend the sense of the words, or make that certain which is in fact uncertain. * * * An innuendo cannot be proved; and it is for the judge to decide whether a publication is capable of the meaning ascribed to it by an innuendo, and for the jury to to it." 13 Am. & Eng. Enc. Law, 465-467. In other words, the court determines whether the words used are susceptible of the meaning sought to be given to them by the innuendo. If this inquiry is decided by the court against the contention of the pleader, this puts an end to it; for it is not permissible to make proof that the words employed were uttered in the sense, or with the meaning, imputed to them in the innuendo. That is not the subject of proof. If it be decided by the court that the words are susceptible of the meaning the innuendo seeks to ascribe to them, then it becomes a question for the jury to determine, under all the circumstances, whether they were intended to mean what the innuendo avers they did. Henderson v. Hale, 19 Ala. 154; Trimble v. Anderson, 79 Ala. 514. We have stated above our interpretation of the language employed. We think it incapable of expressing or conveying the idea that plaintiff had been guilty of embezzlement. Hence, plaintiff failed to make a case in this aspect of his complaint. * There is another aspect of this case. The publication as shown in the complaint contains this clause: "The showing simply proved Mr. Gaither to be a man of small business capacity." This had reference to the prior statement that he (Gaither) had conducted a business of about $80,000, and had sustained a loss of about $2,000. It was not a charge of dishonesty, but it charged personal incapacity to conduct a business such as Mr. Gaither had undertaken. Such publication necessarily, in legal contemplation, tends to injure the credit and standing of the party of whom it is published, and leads, naturally, to his injury in search of business employment. In Ware v. Clowney, 24 Ala. 707, this court, in discussing the doctrine of slander, said: "The authorities generally concur in upholding this doctrine in three classes of cases which injuriously reflect upon the trade, profession, or business of an individual, namely: * *(3) Where the words impute ignorance, or want of skill and capacity, in general terms." And the following language used by Parker, C. J., in Ostrom v. Calkins, 5 Wend. 263, was quoted by our predecessors, apparently without dissent: "Words are actionable which directly tend to the prejudice of any one in his office, profession, trade, or business, in any lawful employment by which he may gain his livelihood." See, also, Sewall v. Catlin, 3 Wend. 291; Mott v. Comstock, 7 Cow. 654; Johnson v. Robertson, 8 Port. (Ala.) 486. The above is the rule when one is falsely charged verbally with being incapacitated for the duties of an office, trade, or business. For a much stronger reason is an action maintainable when the charge is made public in a written or printed publication The reason is that printed or written slauder is uttered with greater deliberation, is more widely circulated, and is placed in an enduring form |