163 Ga. 222 | Ga. | 1926
The petition sets out a cause of action. This will fully appear from the statement of facts preceding this opinion. This being so, the court below did not err in overruling the demurrer upon the ground that the petition set forth no cause of action; and this would render any further consideration of the case by us unnecessary, but for the fact that this court would have no jurisdiction to determine any of the assignments of error if the petition does not make a case in equity.
Does the petition make a case in equity? It was framed upon the theory that the contract between the plaintiff and J. A. Smith created a partnership, and was brought for the purpose of winding up the partnership, affairs, and for an accounting between the partners. The defendants demurred to the petition, on the grounds that this contract created the relation of creditor and debtor between the parties, and, as the relief sought by the plaintiff can only be granted in the event that a partnership existed, that the petition was demurrable upon the grounds that it set forth no cause of action; and because the plaintiff had an adequate and complete remedy at law for the collection of the indebtedness of the defendants to the plaintiff. It does not necessarily follow that the petition was subject to these grounds of demurrer, if this contract did not create a partnership between the parties. Since the passage of the uniform procedure act of 1887 (Civil Code of 1910, § 5406), a petition which sets forth a legal cause of action, though using terms appropriate to an equitable proceeding, is not demurrable on the grounds that it sets forth no cause of action, that there is no equity in the petition, and that the plaintiff has an adequate remedy at law. DeLacy v. Hurst, 83 Ga. 223 (4) (9 S. E. 1052); Teasley v. Bradley, 110 Ga. 497 (4) (35 S. E. 782, 78 Am. St. R. 113); Booth v. Mohr, 122 Ga. 333 (50 S. E. 173); Logue v. Gardner, 152 Ga. 356 (110 S. E. 25); Smith v. Manning, 155 Ga. 209 (116 S. E. 813). A demurrer to the whole petition should be overruled if any part thereof be sustainable. Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874); Georgia Peruvian Ochre
Did the contract between the plaintiff, O. C. Hancock, and the defendant, J. A. Smith, create a partnership? This contract recited that Smith is the owner of a certain peach orchard, which is fully described in said contract, and that Smith was desirous of having Hancock furnish the money to operate and cultivate the same, prune and spray the peach trees, and to pick, pack, haul, and deliver on board of cars all peaches grown on said trees. Hancock agreed “to furnish all the necessary money to plow, spray, prune and fertilize, and to properly cultivate said peach trees; also to furnish the necessary money to pick, pack, crate, and deliver on board of cars . . all of the peaches grown on said peach orchard.” For the furnishing of said money Smith agreed “to pay to” Hancock “one half of the net proceeds arising from the sale of any and all peaches grown on the peach trees described as aforesaid. All of said money so advanced for the necessary cultivation of said peach trees . . to be a charge against said orchard, and to be first paid before any of the proceeds from said
Many efforts have been made to formulate a definition of partnership which at once would be both brief and comprehensive; but owing to the great diversity between partnership agreements this has been found difficult if not impossible. For a collection of these definitions, see 30 Cyc. 349(1), note 1. No one of these definitions has commanded universal approval and acceptance. An agreement to share both the profits and the losses of a business lias been held in some cases to be conclusive evidence of a partnership. Where such an agreement exists, the parties have usually been held to be partners, many cases holding that the sharing of both profits and losses is the true test of the existence of a partnership. But an agreement to share profits and losses does not absolutely, as a matter of law, create a partnership. If other circumstances in the transaction show that the parties did not intend to create a partnership, none is created. Such an agreement is merely prima facie evidence of a partnership. 22 Am. & Eng. Enc. Law (2d ed), 40. Joint ownership of the capital is a strong circumstance tending to prove the existence of a partnership; but its absence is
But, if this contract did not create a partnership, we think that the petition makes a case of equitable accounting. Equity has jurisdiction over mutual accounts growing out of privity of contract, of accounts which are complicated and intricate, where discovery is prayed and granted, where the account is of a trust fund, of accounts between partners and tenants in' common, or where a multiplicity of suits would render a trial difficult, expensive, or unsatisfactory at law. Civil Code (1910), § 4586. Accounting is one of the ancient heads of equity jurisdiction. While this is true, a plaintiff may not come into equity to recover for demands which he may have, founded on account, where he has a plain and adequate remedy at law. McLaren v. Steapp, 1 Ga. 376. We think the facts of this case bring it within the jurisdiction of equity over accounts. While the petition does not allege that the accounts are complicated and intricate, this may fairly be inferred from the fact that the plaintiff is seeking an account of partnership transactions which ran through three years, and which involved large expenditures of money. Besides, under the contract between the plaintiff and J. A. Smith, the advances made by the plaintiff to Smith were to be a charge upon the orchard, that is, upon the peaches grown in the orchard by Smith, with advances of money furnished by the plaintiff. One purpose of the proceeding was to enforce this charge of the plaintiff upon the proceeds of the peaches grown during the year 1925, and which were in the hands of the other defendant, S. D. Smith. Furthermore, the plaintiff was seeking to enforce an express trust between him and S. D. Smith. By the close of the season of 1924 differences arose between the plaintiff and J. A. Smith, in reference to the management of the partnership affairs, and plaintiff notified Smith that he would exercise his right, under the contract between them, to discontinue said business and terminate the same. Smith finally prevailed upon the plaintiff to continue the business, upon the
The defendants further demurred to the petition, upon the ground that it is multifarious in that there is a misjoinder of causes of action and a misjoinder of parties defendant. While multifariousness is a ground of demurrer (Civil Code of 1910, § 5631), it is not favored by the courts. Graham v. Dahlonega Gold Mining Co., 71 Ga. 296 (3). A petition is not multifarious because all of the defendants are not interested in all of the matters contained in the suit. It is sufficient if each party has an interest in some matter in the suit which is common to all, and that they are connected with the others. Blaisdell v. Bohr, 68 Ga. 56; Cowan v. Nicholson, 158 Ga. 425 (123 S. E. 681). An equitable petition, filed for a general account and settlement of a partnership, may embrace any object necessary to the complete adjustment of its
The' defendants further demurred upon the ground that it does not appear from the petition that the plaintiff complied with the obligations resting upon him under his contract with J. A. Smith, and especially because it is not alleged that petitioner has paid the rents due S. D. Smith under the lease contract, and because it is not alleged that he had made the payments according to the bond for title. The petition alleges that there is a balance due plaintiff of $6,621.91, on the advances made by him to J. A. Smith for the operation of the peach orchard for the year 1923, and that he advanced to Smith for the same purpose for the year 1924 $17,398.00, or a total of $24,019.91 for the years 1923 and 1924; that, from the best records obtainable, he has received from said business for said years a total of $12,055.16; that for the year 1925 he advanced, for the purpose of making the peach crop for that year, $4,964.40, and has- been repaid by the said S. D. Smith $4,206.40. While he does not in so many words allege that he complied with the obligations assumed by him in his contract with J. A. Smith, he does to all intents and purposes so allege. For the purpose of the accounting sought in this proceeding, we do not think it was necessary for the plaintiff to have alleged that he had paid the rent due under the lease contract between J. A. Smith and S. D. Smith, nor the purchase-money due to S. D. Smith under his bond for title to J. A. Smith. Plaintiff is not asserting any rights under the lease and the bond for title, nor does it appear that under the transfers which he took of these instruments he undertook, and agreed to pay the rents due under the lease, nor the purchase-money due under the bond for title. For these reasons we do not think that the petition in this case was demurrable because it does not appear therefrom that he had made these payments. Furthermore, as the plaintiff is seeking an accounting of all claims and counter-claims between him and the defendants, and as upon such accounting the plaintiff may not be due the defendants, or either of them, any amount, it is no.t necessary for his petition to allege that he paid demands
The defendants further demur on the ground that the petition does not set forth the sundry advances made by petitioner to J. A. Smith for the purpose of operating the peach orchard during the years 1923, 1924, and 1925. They specially demur to the ninth paragraph of the petition, in which it is alleged that the plaintiff paid the Kingman & Everett bill, $136, spraying bill, $325, Dunlap Hardware Company bill, $110, Ware & Simmons bill, $130, and McCook Lumber Company bill, $157, because the same are not itemized. In a proceeding to obtain an accounting, the plaintiff is not obliged to set out an itemized statement showing the amount claimed by him, or to aver how much is due him upon an accounting. All the petitioner in such a proceeding has to do is to aver facts sufficient to indicate that-something will be. found to be due him by the defendant. Gould v. Barrow, 117 Ga. 458 (43 S. E. 702). For this reason, the court did not err in overruling these grounds of the demurrer.
The defendants made a motion to dismiss the petition, on the ground that the plaintiff, on June 2, 1925, had made a written assignment of all his interest in the peach crop then growing and being harvested on the premises described in the above contract between Hancock and J. A. Smith. This transfer was made to secure certain notes given by Hancock to said bank. The plaintiff was suing to recover advances of money made by him to J. A. Smith for the operation of the latter’s peach orchard for the years 1923, 1924, and 1925. The bulk of his claim was for the two former juars. Clearly, the assignment to the Fourth National Bank of his interest in the peach crop for 1925 would not defeat his right to recover advances made for the above purpose for the years 1923 and 1924. For this reason the court did not err in overruling the motion to dismiss the entire petition. Even if the motion had been limited to striking so much of the petition as sought to recover the advances made for the year 1925, we do not think that it should have been sustained.
Applying the above principles, the. court did not err in overruling the demurrer to the petition, and the judgment of the court below is Affirmed.