48 So. 495 | Ala. | 1909
Regardless of the rights of parties to demur to the evidence, as provided by sections 5342 5345 of the Code of 1907 it is settled in this state that,
The complaint charges the breach of an agreement by a failure to pay the plaintiff 40 per cent, of the profits “as the copartnership of C. T). Smith & Co., should make from the execution of a certain contract for construction,” etc. There was no proof of such a promise either by the company or Smith. The only contract attempted to be proven by the plaintiff was not an obligation to pay him anything, but that he was a partner in the firm of Smith & Co., to the extent of a two-fifths interest, and therefore entitled to 40 per cent, of the profits. If he was a member of the firm, as he claims, we are at a loss to see how he can maintain an action against said firm. On the other hand, he cannot maintain a suit against his copartner for demands growing out of the partnership business, unless there was a settlement and a balance ascertained to be due him. But, if there was a settlement and balance due, it could not be recovered under the present complaint, which is upon an express promise to pay him as distinguished from what he would be entitled to under the law as profits due him as a member of the firm. The plaintiff testified “that, though he wanted one-half interest in the work, it was finally agreed that he should have a 40 per cent, interest therein.” Again, the letter provides that the plaintiff was to have such interest in the contract as he then had in C. 1). Smith & Co., “under same terms,” and there was proof tending to show that they were previously part
The plaintiff having failed to malte out a prima facie case, under the averments of his complaint, the trial court did not err in excluding all of the evidence.
The judgment of the city court is affirmed.
Affirmed.