45 So. 667 | Ala. | 1908
Lead Opinion
The bill involves the final settlement of an alleged partnership, and, of course, embraces an accounting. The respondent Yest, in his answer, admitted the existence of the partnership. In this state of the pleadings, the matter being material, the respondent was concluded by the admission, and estopped to deny the relation so long as that admission remains in the answer. — McGehee v. Lehman, Durr & Co., 65 Ala. 316; Gresham v. Ware, 79 Ala. 192; Toney v. Moore, 4 Stew.
The admission in the answer entitled the complainant to an accounting under the rules and practices of the court. 'The accounts exhibited with the depositions of Yest are voluminous, consuming upwards of 100 pages of this transcript, and are comprised of the history of scores of transactions usually present in the operation of a sawmill. They cover a period of many years; and the correctness of some items is impugned, in greater or less degree, by testimony adduced. Under such conditions it is proper to order a reference to state the account between the parties. On a reference the contested items will be segregated, and the exceptions to the report will enable the chancery court, and this court on appeal, to understandingly and readily pass upon designated and assigned errors, rather than upon the undigested
The decree appealed from is reversed, and the cause' is remanded, that proceedings may be had in accordance with this opinion, unless, in respect of the reference, complainant should decide that, in the light of our rulings, there were no profits in which he was entitled to share, and unless the answer is amended so as to eliminate the admission referred to. The costs of this appeal will be taxed against the appellant and appellee Yest in proportions of one-half each.
Beversed and remanded.
Rehearing
ON RE-HEARING.
Tyson, C. J., and Haralson, Dowdell, Simpson, and Denson, JJ., hold that the asserted admissions in the answers are not so unequivocal as to warrant the application thereto of the rule stated in the original opinion, and that the noting by the respondent Yest as testimony of his answers did not operate to make the answers testimony in the cause, the complainant not having so noted the answers in his note of testimony, and that on the aspect of the bill that it prays an accounting between