Causler v. Wharton

62 Ala. 358 | Ala. | 1878

STONE, J.

There appears to be no question that the copartnership first formed between Causler and Hill, had for its aim and scope the sale of liquors by retail. We think exhibit A to the bill shows that the partnership business was afterwards much enlarged, and that the copartners entered into a trading business, embracing lands and shares. Neither writing, nor any other particular form need be observed in the formation of a trading or laboring partnership. Mutual consent of two or more competent minds can make this, as it can make other contracts. And, like most other contracts, it may be implied from conduct and circumstances, if significant and expressive enough to convince the mind. There may be an exception to the generality of the foregoing remarks, in the matter of partnerships formed for the purchase and sale of lands, as a business. The statute of frauds may require that these shall be in writing. — See Smith v. Burnham, 3 Sumner, 435. But when partners, as an incident to their business, purchase and hold lands, and pay for them with partnership effects, equity treats such lands as moveable partnership property is treated, whenever it may be necessary for the payment of debts of the firm, or, for the adjustment and equalization of accounts between the partners. — Dyer v. Clark, 5 Metc. Mass. 562; 3 Kent’s Com. margin 37 and note 3; Hany, Adm'r v. Parmer, August, 1877, in manuscript; Howard v. Priest, 5 Metc. Mass. 582. But we need not inquire whether this contract was originally formed, so as to bring the lands and their proceeds within the principles which govern partnerships. The agreement of Mr. Hill — exhibit A to the bill — takes the transaction ' without the influence of the statute of frauds, if it ever fell within it.' — See, also, on the question of the equity of this bill, Sanders v. Robertson, in manuscript, Sept. 1877.

“Partnership, as between the parties themselves, is a voluntary contract between two or more persons for joining together their money, goods, labor and skill, or any or all of them, under an understanding that there shall be a communion of profits between them, and for the purpose of carrying on a legal trade, business or adventure.”--Collyer on Part, by Perkins, § 3. Chancellor Kent says : “Partnership is a contract of two or more competent persons to place their money, effects, labor and skill, or some, or all of them, in lawful commerce or business, and to divide the profits and bear the loss in certain proportions.” — 3 Comm. marg. 23. We think it is fully shown that Causler and Hill were part-nets, and that their partnership transactions embraced sales of merchandise, and the purchase or ownership of lands, and possibly some other things.

We do not think the statute of limitations is a bar to the present suit. The agreement or .obligation signed by Hill, shows that the joint or partnership dealings, at least to the extent of the property therein described, were not closed. Other witnesses speak of admissions made by Hill, that certain claims were of the partnership effects. The receipts, or obligation — exhibit A to the bill — furnishes written evidence that Causler had a continuing, unsettled interest in the property therein described; and that it was left in the hands of Hill, with authority to him to sell the same, whenever he might be able to do so at fair prices. It was evidently contemplated that this trust and power should continue until Hill could make sale of the property, and the proof shows that he continued to make sales, collect dues and rents, up to a short time before his death in 1871. The statute of limitations does not bar the claim set up in this bill for an account of the partnership dealings.— Bradford v. Spyker, 32 Ala. 134.

The receipt or agreement — exhibit A to the bill — contains the following clause, or recital: “As there is yet an undivided interest not disposed of — some of said property, or effects, in the name of O. F. Hill, and some in the name of O. P. Hill & Co. — the interest in said property being equal; and the said Thomas H. Causler, desirous of removing west, leaves all of said property in the hands of his former partner to be sold, whenever he, the said O. P. Hill, can or may be able to do so at faii prices. And the following is a statement of the property, both real and personal, to-wit going on to describe certain real property and two slaves. This recital, unexplained, would indicate that all other partnership property, real and personal, had been disposed of. Speaking of the eighteen hundred dollars which Causler admits Hill paid him on the eve of the former’s leaving for Texas, he, Causler, says: “ Hill obligated himself to give me eighteen hundred dollars at a certain time. If he did not have it belonging to the firm, he was to pay it out of his own funds; or, I would give him same amount.” On being asked to explain how Mr. Hill was to be reimbursed after paying the |l,800, this witness, complainant, answered : “I don’t know how it was. ’ We confess ourselves unable to explain the foregoing language, unless it means this : that all the partnership effects, except the lands and slaves described in the receipt or agreement as “not disposed of,” were embraced in a settlement or agreement, by which one partner was to give the other eighteen hundred dollars for his share. We know not how else to explain the language, that Hill was- to pay Causler $1,800 at a certain time, or Causler would give him same amount. It sounds very like the offer to “give or take,” frequently heard between joint owners, in negotiations for a sale by one to the other. True, this witness says : “Hill did not give me the $1,800 and half interest in lands, mentioned in the bill, for my interest in notes and accounts due the firm.” This language, literally interpreted, is consistent with our suggestion above; for on that theory, Hill was giving the $1,800 alone, for Causler’s interest in the notes and accounts; not $1,800 and half interest in the lands. This witness makes other statements tending to show that the $1,800 was paid to him by Hill on account, and not in the purchase of Causler’s interest in the notes and accounts. The witness, Woodliff, testifies that in 1867 Hill informed him that he, the witness, owed Hill & Co., Hill & Sulser, and O. P. Hill. This, however, may have been only a description of the different forms of indebtedness, and not intended to affirm that Causler still held an interest in the claim. On the unaided testimony in this record, we do not think Hill’s estate should be held to account for any assets of the partnership, save the lands and slaves described in the receipt or agreement, and the rents and products thereof. Nor should Causler be held accountable for the $1,800. This statement, howevex-, is made on what appears in this record. The account books, and the letter from Hill to Causler, spoken of in the note of the evidence before the Register, are, xxo part of them, copied in this record. They, and possibly other testimony, may show that the $1,800 were paid to Causler only on an account, and that he, Causler, still was interested in the notes and accounts. If so, our intimations above will go for nothing.

Should it become necessary to go into the general partnex*ship dealings, as was done in the firmer hearing before the Register, we feel it our duty to point out an error into which the Register fell in his former,accounting. It consists in the double use made of the $1,800 item. That item was treated, and rightly treated, as part of the partnership assets. It was charged, and rightly charged, as received and used by Causler. But then, it was part of the gx-oss sum of $10,525.71 of assets, with which Hill was charged. This brought it into the account of assets received, as a charge against each of the partners, and consequently overstated the gross assets by eighteen hundred dollars. If Hill received $10,525.71 of gross assets, he turned over $1,800 of that sum to Causler, and thus reduced his gross x-eceipts to $8,725.71, from which should be deducted bis disbursements. This will show a balance of assets, after deducting disbursements, of $1,800 less than the sum the Register would report on the other basis.

The witness, Causler, should not have been permitted to testify as to any transaction with, or statement by Hill, defendant’s intestate, unless he was first interrogated thereto by the opposite party. And the fact that he was put on the witness stand, and interrogated by the defendant in relation to other matters, does not in the least vary the rule.— Code of 1876, § 3058: Tisdale v. Maxwell, 58 Ala. 40 Of course, if he had been first interrogated by opposing counsel as to such transactions with, or statements by Mr. Hill in his lifetime, then cross-examination in his own behalf would have been legitimate, not otherwise.

Inasmuch as all the evidence used in the court below is not found in the present transcript, we are unable to lay down absolute rules for taking the account.

Reversed and remanded.