133 Ala. 599 | Ala. | 1901
The bill in this case is filed by James Folmar Sons & Co., a partnership, and Folmar Bros., another partnership, which is alleged to have succeeded to the rights of the former, and claiming the benefits of whatever decree, James Folmar Sons & Co. may be entitled to under the allegations of the bill. The pur
The respondent Shows, answering the bill, admits the formation of the partnership of T. W. Shows & Co. on the 16th day of October, 1893, and its dissolution in August, 1894. He denies that James Folmar Sons & Co. contributed any sum in money to the capital stock of the" partnership, but avers that they contributed horses, mules and vehicles at an agreed valuation of $1,400, of which the respondent paid them on the same' day $599.50, and $100.50 was charged to him on the books of James Folmar Sons & Co1, and which was afterwards paid, and that this was all the money or property contributed by either party to' the concern. He' expressly denies that James Folmar Sons & Co. after-wards contributed said sum of $4,372.88, or any other sum, or that the respondent afterwards contributed any other sum to the capital stock, other than as stated as. to paying one-half of the agreed valuation of the horses, mules and vehicles furnished by James Folmar Sons &. Co. The answer shows that the defendant ran an individual account in his own name with James Folmar Sons & Co., and made deposits in the Bank of Luverne, which was run by James Folmar Sons & Co. and for which certificates rvere issued to him in his individual name, and that his individual account with James Fol-mar Sons & Co. and with the Bank of Luverne, had no connection whatever with the partnership matters of T. W. Shows & Co. It was also shown by the answer of respondent that there were mutual accounts between the firm of T. W. Shows & Co. and the firm of James
The cause was heard for final decree upon the pleadings and proof, and what Ave have stated above as to the allegations of the bill and the denials in the answer, are sufficient for present purposes.
There are questions suggested and discussed in the brief of appellant’s counsel relative to' the pleadings, which we deem it unnecessary to consider, as we think the case may be properly determined on the main' issue by the proof. The bill alleges the formation and dissolution of the partnership, and then alleges that no settlement of the partnership affairs Avas ever had. The answer admits the allegations as to the formation and dissolution, but expressly denies the allegation that no settlement of the partnership matters was made.
The evidence without conflict shoAvs that B. H. Fol-mar, one of the firm of James Folmar Sons & Oo., and who is a complainant in the bill, had the active management and control of the business of his said firm, and that he representing the firm of James Folmar Sons & Oo. with T. W. ShoAvs effected the partnership of T. W. Shows & Oo., and also its dissolution. The evidence further shows, and we might say without dispute, that upon the dissolution of said partnership, a division of its assets Avas made, in which division T. W. ShoAvs received the horses, mules and vehicles on hand, and the book accounts of the firm, amounting to about $100, Achile James Folmar Sons & Oo. received the notes and mortgages due the concern, amounting to about $1,400; that immediately upon the dissolution and division of the assets, T. W. Shows, with the- property allotted to him, set up and carried on the livery and stable business in his own name; and James Folmar Sons & Oo. proceeded to collect the notes and mortgages so received by them; and that neither party afterwards pretended to claim any interest in the property of the other under said division and allotment, un
Upon the whole evidence, it is quite evident that the theory of the complainants, that there had never been a settlement of the partnership affairs is based largely upon the erroneous supposition that the individual account of T. W. Shows with James Folmar Sons & Co. and with the Bank of Luverne, a branch business of James Folmar Sons & 'Co., entered into the partnership business of T. W. ‘Shows & Co. The nature and character of this individual account, the items which enter into it, the way in which it was- carried on the books of James Folmar Sons & Co. and the Bank of Luverne, undoubtedly, we think,- support the testimony of T. W. Shows, that the account had no connection whatever with the partnership matters of T. W. Shows & Co.
R. H. Folmar, who is made a complainant in the bill, and who is conceded to have been the active managing partner in the firm of James Folmar Sons & Co., is not
It is insisted by counsel for appellees that every presumption should be indulged in favor of the finding of the chancellor on the facts, and that unless the preponderance of the testimony is against the finding of the chancellor this court should not disturb his decree. The doctrine here invoked is directly opposed to the express language of the statute, section 3826, subdiv. 1, which reads as follows: “The Supreme Court has authority — • 1. To exercise appellate jurisdiction coextensive with
Our conclusion is, that the allegations of the bill are not sustained by the proof. And it follows, that the decree of the chancellor must be reversed, and a decree will be here rendered dismissing the bill.
Reversed and rendered.