30 Ala. 286 | Ala. | 1857
Tbe leading object of the bill in this case is, to establish for the infant complainant, Judah Touro Robertson, an equitable partnership interest with Albert Stein in the Mobile water-works ; and, if this object fail, to establish for the same complainant a resulting trust in certain funds invested by his father in those works. The following propositions are condensed from the bill: 1. There was a contract between ¥m. H. Robertson, the father of complainant, and Stein, that the former, for the benefit of his wife and children, should have an interest of one half in the water-works, and that that interest should be declared after the completion of the works. 2. That afterwards one Richards was admitted into the partnership, and thereupon the interest of Robertson’s wife and children was reduced to one third, being equal to the interest of Stein. 8. That upon a settlement between one Colwell, for himself and as the executor of Richards, and Stein, the former in his individual and’representative capacity was allowed an interest of 87J-100; and after that the -wife and children of Robertson were, in equity and good conscience, entitled to, and now claim, one half the remainder interest. 4. That all the money advanced by Robertson to the concern, amounting to about ten thousand dollars, was derived from the sale of the property of his children.
The two aspects of the bill, — one looking to a recovery upon a contract for the benefit of Robertson’s wife and children, and the other to the enforcement of a trust implied from the advancement of money now belonging to the complainant, — are not repugnant; nor is there any inconsistency between the existence of the contract, and the fact that the money was paid as alleged in the bill. The bill is, therefore, not objectionable for repugnancy.
The other objections made to the bill, apply also to the proof, and will be considered when we come to discuss the testimony.
The first, and most important question in the case, is,
It may be conceded, that Robertson did not fully comply with the contract on his part, by furnishing as much money as he agreed to furnish; and yet it would not follow, that Stein had a right to repudiate him as a partner. lie has gone on, and, as he virtually admits, accepted money from Robertson, under the contract; and he freely availed himself, as the testimony shows, of the
Having attained the conclusion that there was an agreement of copartnership, we must now inquire whether that agreement was made with Bobertson for the benefit of his wife and children. In conducting this inquiry, we exclude from our consideration the deposition of Bobertson, because we deem him incompetent from interest; and the deposition of Gerhard, because the objections to it raise several difficult questions, the decision of which would prolong and probably confuse this opinion, and its admission or rejection would not affect the conclusion which we attain. Bobertson is directly interested for the complainant. A decree in this ease, for the complainant, would be evidence for him, in a suit by the complainant to charge him with the money received by him as guardian. If it bo conceded that an infant cannot bind himself by an election, and that therefore he would not be precluded by taking in this case the benefit of the unauthorized investment of his money from proceeding against Ms guardian hereafter, — it will not follow, that Bobertson is a competent witness ; because, if to a suit by the infant, to charge Bobertson, the latter should plead the recovery in this case, the court would at least require him to do equity, by restoring the benefit of the investment established in his favor by the decree in this case, before it would give him any relief.
It is said, that the money of the children of Robertson was derived from an unauthorized and therefore illegal sale of their property. If this be so, will it avail the defendant in this case ? It may show that the infant complainant would have a right to assert his title to the property sold; but that could not affect Stein. The purchaser could only go on Robertson for reimbursement. He could not go on Stein, one of the partners in the adventure into which the money was carried by Robertson.
But then it is objected by the defendant, that the money invested in the adventure did not really belong to the children of Robertson, as is proved by the fact that the investment was made before their money could have been received. It is also objected, that no money at all was invested which belonged to Mrs. Robertson; and this objection applies alike to the bill and the proof. It will not be denied, that it is permissible for a man to invest money of his own in a copartnership, for the benefit of his wife and children, by contract with the copartners; and the beneficial interest would be in the wife and children, as against all the world except existing creditors. — Collyer on Partnership, § 13; Story on Partnership, § 70. The contribution to the partnership by Robertson was not alone of money, but also of services which the proof shows were valuable. Then, if it were true that the entire contribution of Robertson to the partnership was of his own money and his personal services, that would be no reason why Stein should be permitted to repudiate the beneficial interest of Robertson’s wife and children, growing out of a partnership agreement with him. If the right of recovery here depended upon the establishment of a resulting trust, it would be indispensable to prove the ownership of the money invested to have been in the complainant, or in him and those from whom he might derive it; but the decree is, we think, maintainable upon the contract of Robertson with Stein.
It can make no possible difference, that the funds invested by Robertson were his own, except so far as that fact, in connection with his bankruptcy, might conduce to show that the benefit provided for his wife and children in the contract with Stein was the result of an arrangement to defraud the creditors of Robertson. ¥e do not stop to inquire whether, in this case, the defendant could, under his answer, avail himself of the defense,
The decree of the chancellor is erroneous, in allowing the complainant an interest of one-third. The interest to which the complainant is entitled, is 31J-100; and Stein is entitled to an interest for the same amount.
We understand the chancellor’s decree to authorize the registrar, in taking- the account, to credit the complainant with sums of money advanced as a loan by other persons in their behalf, which have been repaid by Stein. This is also erroneous. The complainant is entitled to no other credit than for the amount actually advanced to the concern by his father, for Mrs. Robertson and her children, and his proportionate share of the profits.
The chancellor’s decree must be here reversed, and a decree rendered, such as, in our opinion, ought to have been rendered in the court below; and this court doth therefore decree as follows: It is ordered, adjudged, and decreed, that the complainant, Judah Touro Robertson,