Berger v. Dempster, 8 Div. 215

CourtAlabama Supreme Court
Writing for the CourtANDERSON, C.J.
Citation85 So. 392,204 Ala. 305
Decision Date03 April 1920
Docket Number8 Div. 215

85 So. 392

204 Ala. 305


8 Div. 215

Supreme Court of Alabama

April 3, 1920

Rehearing Denied May 30, 1920

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Action by George R. Dempster against Knox Berger, begun by attachment, in assumpsit. Judgment for plaintiff, and defendant appeals. Affirmed.

Joseph H. Nathan, of Sheffield, and Lange & Simpson, of Birmingham, for appellant.

Mitchell & Hughston, of Florence, for appellee.


The defendant filed a demurrer to count 4, and assigns as error the action of the trial court in overruling said demurrer to count 4. The judgment entry recites the filing of demurrer to the complaint and the overruling of same. The complaint contains four counts, and from aught that appears from the judgment entry there was no specific ruling upon a demurrer to count 4. Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239.

We, of course, realize and appreciate the general rule that only the chancery court can settle partnership accounts between partners, but think that the facts in this case bring it within the exceptions to the rule. The plaintiff's evidence in effect showed that defendant had previously withdrawn from the firm, and that at the time of the negotiations between him and the plaintiff looking to a settlement of the liabilities of the firm the partnership had ceased business and was not in existence; "that the unpaid claims is all there is left of the old partnership;" that plaintiff had a list of the unpaid bills due by the partnership, and defendant admitted that he was liable for one-half of same; "that defendant told witness to make settlement of the claims and he would pay half of it;" that plaintiff paid said claims and subsequently demanded of the defendant the half he had agreed to pay. We think that these facts sufficiently show a termination of the partnership between the plaintiff and the defendant, a settlement between them, and an express promise by the defendant to pay the plaintiff one-half of what he had paid out on the request of the defendant in the adjustment of claims for which defendant admitted a liability with the plaintiff. The transfer by the defendant of all his interest in the firm to Timberman, a stranger, necessarily operated as a dissolution of the then existing partnership. Monroe v. Hamilton, 60 Ala. 226; Goldsmith v. Eichold, 94 Ala. 116, 10 So. 80, 33 Am.St.Rep. 97. The partnership having been...

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13 cases
  • Liverpool & London & Globe Ins. Co. v. McCree, 6 Div. 954.
    • United States
    • Supreme Court of Alabama
    • January 17, 1924
    ...made plain the fact that there was a specific ruling upon demurrer to each of the pleas in abatement, and the cases of Berger v. Dempster, 204 Ala. 305, 85 So. 392, Sims v. Ala. Water Co., 205 Ala. 378, 381, 87 So. 688, Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796, and Alabama Ch......
  • Ransom v. Harroun, 26039
    • United States
    • United States State Supreme Court of Mississippi
    • June 13, 1927
    ...v. Buckingham, 28 Miss. 92; Gow on Partnership 102; Angell on Lim. (2 Ed.), 160; Partee v. Mathews, 53 Miss. 141; Berger v. Dempster, 85 So. 392, 20 Ala. 305. We contend that all indebtednesses of the alleged partnership were barred at the time of the filing of the bill of complaint in this......
  • Berkowitz v. Farrell, 6 Div. 145.
    • United States
    • Alabama Court of Appeals
    • April 10, 1923
    ...981; Syson Timber Co. v. Dickens, 146 Ala. 471, 40 So. 753; Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239; Berger v. Dempster, 204 Ala. 305, 85 So. 392; Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10; Central of Ga. Ry. Co. v. Hingson, 186 Ala. 40, 65 So. 45; Griel v. Lomax, 86 A......
  • J. C. Byram & Co. v. Livingston, 6 Div. 53.
    • United States
    • Supreme Court of Alabama
    • June 9, 1932
    ...and the sufficiency of the complaint will not be considered on appeal. Yates v. Barnett, 215 Ala. 554, 112 So. 122; Berger v. Dempster, 204 Ala. 305, 85 So. 392; Seaboard Air Line Ry. Co. v. Pemberton, 202 Ala. 55, 79 So. 393; Alabama Chemical Co. v. Niles, 156 Ala. 298, 47 So. 239. There a......
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