119 Ala. 183 | Ala. | 1898
It is unnecessary, as will hereafter be seen, to consider the vast mass of evidence contained in the record in this cause, and to review the correctness of the chancellor’s finding on the facts. The bill was filed by appellant, Willis C. Wood, claiming that on August 1, 1881, a copartnership was formed between himself and J. P. Wood, F. S. Wood and B. W. Wood, under the name of J. P. Wood & Co., by the terms of which complainant was to have a one-half interest therein, and the defendants the other half, which partnership was dissolved on August 1, 1884; and praying for the appointment of a receiver and an accounting between the partners, that a lien be declared in favor of complainant for his reimbursement on certain designated property into which, it was alleged, money and property of the firm, fraudulently misappropriated by defendants, had been converted, and that a mortgage which had been given to complainant by J. P. Wood, M. A. Wood and F. S. Wood in consideration of his undertaking and promising to pay all the indebtedness of the firm to the extent of $17,000, be foreclosed. The answer of the defendants denied the material allegations of the bill, and especially denied that there ever was such a partnership as that alleged in the bill, each of the defendants, except J. P. Wood, denying that he was, or ever had been, a member of said partnership, and averring that said partnership was composed of complainant and J. P. Wood only. Upon a reference to the register he found and reported that the partnership was begun on August 1,1882, and that the members of the firm were complainant, J. P. Wood, M. A. Wood, F. S. Wood and B. W. Wood, stated an account between the partners, showing a balance due complainant, and found a
It is a settled rule that the conclusion or finding on the' facts by the chancellor, will not be reviewed when it affirmatively appears that there was evidence before the court which is not- set out in the record. — Winter v. City Council, 79 Ala. 490; Toon v. Finney, 74 Ala. 343. The certificate of appeal recites that “the foregoing pages, numbered from one to eight hundred and eighty-eight, contain a full and complete transcript of the record and proceedings in said cause, except the answers of J. M. Hamil to the interrogatories filed by respond-. ents, Avhich have been lost from the record;” and the note of submission shows that the deposition of Hamil was before the chancellor, but it does not appear in the record. We have no means of knowing the nature of this testimony, and hence must presume, as insisted upon by counsel, that it was sufficient in character and weight, considered in connection with all the other evidence, to justify the conclusion of the chancellor that the firm of J. P. Wood & Co. was composed of complainant and J. P. Wood only, that there was nothing due on said mortgage, or that its conditions had been performed, and that there had been no misappropriation of firm assets, or conversion thereof into other property, as charged in the bilí, and to justify the overruling of the register’s report. And having found that the firm of J. P. Wood & Co. was composed of complainant and J. P. Wood only, the chancellor did not err in dismissing the bill. While, upon a bill for an accounting between partners and an adjustment of their respective liabilities, a decree cannot be refused simply because it is found that nothing is due the complainant, yet the complainant in such bill is not entitled to any decree ascertaining the respective liabilities of the partners
Affirmed.
