Russell v. Hayden, 95 So. 34

Russell v. Hayden

95 So. 34 | Ala. | 1923

Upon former appeal (201 Ala. 517, 78 So. 871) this court held that the bill of complaint was defective, in that it failed to sufficiently set out the facts or particulars of the contract, express or implied, of the claimed copartnership Since the reversal several amendments have been made to the bill, and we are of the opinion that the bill as last amended was not subject to the grounds of demurrer as are insisted upon in the argument of counsel upon this appeal. As we gather from the averments of said amended bill, Ralph M. Russell was conducting a business in Birmingham; that the complainant advanced him $7,500 to invest for her benefit; that subsequently she and the said Russell formed a copartnership to conduct a medicine business, and as an incident thereto engaged in buying and selling real estate; that the complainant was to contribute said $7,500 or its equivalent into which it had been invested, including the profits arising therefrom, and Russell contributed the business that he was then conducting, and that they were to be equal partners and owners and to share alike in the profits and losses, and each of them to give their personal attention and service to the business. True, the bill is not as specific and clear, perhaps, as it might be, but it does contain a sufficiency of facts as to constitute a legal partnership, and does not charge the same by way of conclusion merely, and was not subject to the grounds of demurrer interposed thereto testing the partnership theory of the case. The bill does aver that in addition to the medicine business they were to engage in various other lines, but the other lines are defined to be "such as buying and selling real estate," and there is no ground of demurrer challenging its failure to set out or define the other lines of business, if any there were, into which they were to engage. Nor does the bill describe or define the business then conducted by the said Russell, on inform us whether it was a separate and independent one, or was identical to and merged into the one to be conducted by the firm, and, from aught appearing, Russell may have contributed some independent business towards the assets of the firm, but this defect is not pointed out by any specific ground of demurrer.

As the bill contains equity as one for the settlement of a partnership, the complainant is entitled to an accounting and discovery as an incident thereto.

Whether the bill is defective as to the other things averred and sought, such as removal of the settlement of Russell's estate into the chancery court, we are not called upon to decide, as these questions are not raised or discussed in the brief of appellant's counsel.

The decree of the circuit court is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur. *631