85 So. 392 | Ala. | 1920
The defendant filed a demurrer to count 4, and assigns as error the action of the trial court in overruling said demurrer to count 4. The judgment entry recites the filing of demurrer to the complaint and the overruling of same. The complaint contains four counts, and from aught that appears from the judgment entry there was no specific ruling upon a demurrer to count *306
4. Alabama Chemical Co. v. Niles,
We, of course, realize and appreciate the general rule that only the chancery court can settle partnership accounts between partners, but think that the facts in this case bring it within the exceptions to the rule. The plaintiff's evidence in effect showed that defendant had previously withdrawn from the firm, and that at the time of the negotiations between him and the plaintiff looking to a settlement of the liabilities of the firm the partnership had ceased business and was not in existence; "that the unpaid claims is all there is left of the old partnership;" that plaintiff had a list of the unpaid bills due by the partnership, and defendant admitted that he was liable for one-half of same; "that defendant told witness to make settlement of the claims and he would pay half of it;" that plaintiff paid said claims and subsequently demanded of the defendant the half he had agreed to pay. We think that these facts sufficiently show a termination of the partnership between the plaintiff and the defendant, a settlement between them, and an express promise by the defendant to pay the plaintiff one-half of what he had paid out on the request of the defendant in the adjustment of claims for which defendant admitted a liability with the plaintiff. The transfer by the defendant of all his interest in the firm to Timberman, a stranger, necessarily operated as a dissolution of the then existing partnership. Monroe v. Hamilton,
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.