Butts v. Cooper

• Decision Date: 02 July 1907
• Citation: 152 Ala. 375,44 So. 616
• Parties: BUTTS v. COOPER.
• Court: Alabama Supreme Court

44 So. 616

152 Ala. 375

BUTTS v. COOPER.

Supreme Court of Alabama

July 2, 1907

Appeal from Chancery Court, Crenshaw County; W. L. Parks Chancellor.

Action by T. U. Butts against J. T. Cooper. From a decree dismissing the bill, complainant appeals. Affirmed.

J. M Chilton, for appellant.

Foster Samford & Carroll and Steiner, Crum & Weil, for appellee.

SIMPSON J.

This was a bill filed by the appellant against the appellee, alleging that appellee was interested as an equal partner with one Cosby at Brantley, Ala., operating a sawmill and owning lands and timber rights and also a railroad and certain personal property connected with the business; that negotiations were pending between Cooper and Cosby, looking to the buying out of the interest of one or the other by the other partner; that Cooper was not able to make the moneyed arrangements to buy out Cosby, and approached complainant, shortly before July, 1900, informing him that Cosby's interest could be bought for $17,500, and endeavored to induce complainant to purchase Cosby's interest; that complainant at first declined, but, after appellee had tried in vain to induce one Favors and others to buy the interest of Cosby or to furnish him the means to buy it, appellant finally agreed the appellee should buy said Cosby's interest for appellant; that previous to this time, to wit, in 1896, complainant was engaged in the lumber business at Columbus, Ga., under the firm name of Jones Bros. & Butts; and that, in accordance with an agreement between appellee and appellant, he had bought out the interest of his partners for appellee, taking said appellee as a partner, but making all the moneyed arrangements for him himself, and taking the title to the property in his name, said appellee joining him in a note to the bank for the money necessary to make the transaction, and the business continued on thus without any written agreement. The Columbus firm was Butts, Cooper & Co. and according to the bill the agreement was that Cooper was to purchase Cosby's interest in his own name, but for Butts; the firm of Butts, Cooper & Co. assuming the payment of certain debts due by the firm of Cooper & Cosby, including about $3,000 due to Butts & Cooper, and the balance to be paid in money which Butts was to raise, all of which matters were to be adjusted in future settlements. Butts was to manage the business in Columbus, and Cooper to manage the business at Brantley, Ala. It is alleged the cash was raised on the joint note of Butts and Cooper, that the debts were assumed, and that Butts had several times asked for some evidence of his interest, but Cooper put him off till he could repurchase a fourth interest in the firm of Butts & Cooper, which he had previously sold to one Fort. Cooper did acquire the Fort interest. A settlement of the Georgia business was entered upon, and before it was finally concluded Butts reminded Cooper that the Alabama business was to be settled at the same time, and then Cooper denied that Butts had any interest in the business in Alabama, which had all along been conducted in the name of the Cooper Lumber Company. Without going into the details, these are the material allegations of the bill. The bill avers the willingness of complainant to account for Cooper's interest in the business at Columbus, and propounds certain interrogatories to Cooper. The prayers of the bill are, first, that a receiver be appointed to take charge of said partnership business, composed of plaintiff and defendant, and that Cooper be required to turn over all assets heretofore belonging to said firm of Cooper & Cosby, and which have since been bought with partnership funds; second, that it be decreed that complainant became a purchaser of the Cosby interest in said partnership, and, if it appears that said Cooper took a transfer of said Cosby interest to himself, then he be decreed to hold the same as trustee for complainant; and, third, that a reference be made to the register to state an account, that the partnership be dissolved and the assets sold and distributed.

The answer admits the existence of the firm of Cooper & Cosby, stating that at first Cosby had no interest in the lands, but only in the business, and afterwards acquired a half-interest in the lands, and claims that said partnership was dissolved on July 11, 1900, when respondent bought out Cosby's interest in all of the property, real and personal, and in the business. It enters into a detail of the negotiations for the purchase of Cosby's interest, and denies that there ever was any agreement or understanding that the complainant was to have any interest in such purchase. It admits the partnership of Butts & Cooper at Columbus, but denies some of the details as to the manner of forming it and the amount of money put into that business by him. It denies all allegations tending to show that Butts was to have any interest in the business at Brantley, Ala., and states that the note to the bank for cash payment on the purchase money was merely signed by Butts as his security, and that the debts assumed by the Columbus firm were only for the mutual convenience of both firms, as the Brantley firm was shipping lumber to the Columbus firm, and that when said debts of Cooper & Cosby were paid the amounts were charged to either Cooper & Cosby or to the Cooper Lumber Company. In fact, the answer to the bill and to the interrogatories therein denies all the material allegations of the bill, pleads the statute of frauds, and demurs to the bill.

While the prayers of the bill are for a receivership, and a dissolution of a partnership, yet it is manifest that the burden rested on the complainant to show that a partnership existed, as it is denied by the respondent. So the second prayer of the bill is that it be decreed that complainant "became the purchaser of the interest of said Cosby in said partnership in his own right, and thereby became entitled to share equally with said Cooper in the profits thereof, and is chargeable with a like proportion of the debts of said partnership," and that said Cooper "be decreed to hold the same as trustee for orator." While it is true, as remarked by appellant's counsel, that this is not a bill "to compel the formation of a partnership," yet it is a bill praying that a partnership be declared to exist between complainant and defendant, and it bases that prayer on the allegations that, when Cooper bought the Cosby interest in the late firm of Cooper & Cosby, he bought it for the complainant, and that thereby complainant became a member of the new firm which was to be organized between complainant and defendant. He certainly did not become a member of the firm of Cooper & Cosby, for that firm was dissolved when Cosby's interest...