Dugger v. Tutwiler

129 Ala. 258 | Ala. | 1900

HARALSON, J.

Bill for settlement of partnership.

1. In sncli a suit, “.The essential allegations of the bill of complaint are, the fact of partnership between the parties, a dissolution or the grounds for seeking one, and unsettled accounts growing out of the partnership business. When all these facts appear, the hill is good on demurrer.”—15 Ency. Pl. & Pr., 1082; Glover v. Hembree, 82 Ala. 324. The simple averment that a partnership was formed between the parties is a mere conclusion of the pleader. Whether or not in any instance one was created, is a question of law to be determined on facts stated. In order, therefore, for the court to ascertain Avhether a partnership existed, the agreement depended on to have that effect, should be alleged in terms or in substance.—Tutwiler v. Dugger, 127 Ala. 191. As elsewhere expressed, “In averring a partnership, the names of the parties, the terms of the partnership, and the rights and interests of the partners must be alleged.” — 15 Ency. Pl. & Pr., 1083.

2. The bill avers that on the 12th of September, 1890, the complainant, Henry T. Young, O. S. and P. A. Tut-wiler, bought a plantation in Hale county, and paid therefor on January 1, $432, and contracted to pay off a mortgage then on the property for something over $10,000. It is then averred, in the amended bill, “that on that day [the 12th Sept., 1890,] a partnership -was formed between the complainant, and [the other parties named] for the following purposes. It was agreed that said partnership should own and control the said lands above described, * * * should improve the same by building houses, ■digging ditches and' generally improving' the same, * * * rent the said . lands, and should sell the same for a profit,” etc. “It was further understood that all the expenses attending said business were to be equally borne by each member of said firm, and that any losses or profits arising in any way from the business were to be equally divided, among the members of the partnership.”

Here we have the averment of the formation of a partnership and the names of of the persons entering into it, with a statement of the purpose for which the partnership was .formed,- — that of purchasing a plantation, improving it and selling it for a profit, meantime renting the place out. It is averred, that the parties •made the cash payment on the purchase, and that they were to share equally in the losses and profits of the enterprise. It is alleged that the farm was all the property the partnership owned, that its management for the purposes intended was the -only business it had, and 'that said farm was sold, on the 3d of December, 1892, under the mortgage existing on it when it was purchased by complainant and his associates. These -aver-ments constitute the essential and -sufficient averments in a bill for the settlement of a partnership.

3. Objection is made on demurrer, that the bill -does not -show that the partnership ever in fact owned and took control of the property in question. It does allege that complainant and associates -bought the land; that a conveyance was made of the same to -complainant -and his other associates except P. A. Tutwiler, but that it was understood that he should be equally interested with the other members of said firm in said lands, and in all of the business of the firm, and was to share equally with the .other members in the profits and losses of the same; that said P. A. Tutwiler in the years 1890,1891 and 1892 collected large sums for the rents -of the lands, and that complainant, with the knowledge of the -other members paid out large -sums of money in improving the property, in payments on the purchase money, and for taxes due thereon. -These averments -show clearly enough that the partnership owned and controlled the property up to the time it was -sold.

4. It is objected again, that the bill shows that the suit was barred by the statute of limitations of six years. It appears the mortgage on the 1-and was foreclosed on the 2d December, 1892, and the bill was filed the 17th. May, 1899. There can be no question but that this sale under the mortgage operated a dissolution of said partnership. — 17 Am. & Eng. Ency, LaV, 1100, and authorities there cited. Without more, this would be sufficient to bar the maintenance of the bill. A bill for settlement, however, is timely, “if filed within six years from the actual dissolution, or credit or other like partnership transaction on account between the partners, from Which a promise on the part of the defendant to pay the balance found against him on final settlement may be implied.”—Haynes v. Short, 88 Ala. 562; Bradford v. Spyker, 32 Ala. 134. It is well understood, also, that after, as well as before dissolution, each partner can pay a partnership debt, or receive payment of one due the partnership, and that each, upon a dissolution, has the right to settle its affairs. To that end, there is a continuing agency in each partner, except in case of some agreement or order of court to the contrary. — 1 Lindley on Part/, * 217, and authorities in n. 25.

The averments of the 5th paragraph of the bill as amended, show, in addition to the allegations on the same subject above referred to, that in the years from 1890 to 1898, both inclusive, the complainant was forced to pay out large sums of money on account of the in-' debtedness of said partnership, for their part of which his associates have refused, though requested, to pay, and that there is no property belonging to the partnership.

Whether there were not some of the items of plaintiff’s account barred by the statute,- — a question we need not now decide, — it is certain from what has appeared, that they were not all barred at the time the bill was filed, and not so appearing on the face of the bill, the question of the bar of the statute could not properly be raised on demurrer.—1 Brick. Dig., 699, §§ 859-861; Underhill v. Ins. Co., 67 Ala. 45; Scruggs v. Decatur M. & L. Co., 86 Ala. 173; Gould v. Whitmore, 79 Me. 383.

5. As for the $500 fee paid by the Knights to P. A. Tutwiler for selling the land, it appears from the allegations of the bill, that it was agreed between said Tutwiler and the complainant and the other members of the firm, at the time of the formation of the partnership, that the same should go to and be equally divided between them, and that this was one of the terms of the agreement of partnership. To entitle them to share equally, in this fee, no other consideration than the agreement alleged was necessary; and the demurrer to this part of the hill, as for any grounds specified, should have been overruled.

The other grounds of demurrer are without merit.

A decree' will be here rendered overruling the demurrer to the entire bill as amended and the one to separate and specified parts of it, and reversing and remanding the cause, with leave to file answers within thirty days.

Reversed, rendered and remanded.