Cole v. Yearwood
| Decision Date | 05 June 1941 |
| Docket Number | 8 Div. 117. |
| Citation | 241 Ala. 437,3 So.2d 1 |
| Parties | COLE v. YEARWOOD |
| Court | Alabama Supreme Court |
Rehearing Denied June 30, 1941.
Appeal from Circuit Court, Marshall County; W.J Haralson, Judge.
Scruggs & Creel, of Guntersville, for appellant.
Marion F. Lusk, of Guntersville, for appellee.
The appeal is from a final decree and that affirming the register's report.
The facts succinctly stated are that Cole and Yearwood were partners doing business as R.L. Cole Horse & Mule Company; they took notes and mortgages to secure sales and hypothecated the same to the banks indicated; appellant Cole executed a note and chattel mortgage to complainant Yearwood for $10,000, in settlement of their business affairs, and at the same time, Yearwood executed and delivered to Cole the following instrument:
Thereafter, and on May 26, 1938, and after Cole had paid Yearwood out of collections on these notes something over the amount of $7,000, he did execute and deliver to Yearwood an additional note for the balance of the $10,000 note, and did execute to him a mortgage on certain real estate to secure said note of $2,300. Thereafter Cole paid, without having any settlement with Yearwood, several sums on this note totaling some $1,265 or more, as was admitted by Yearwood. Cole thereafter declined to pay any further amounts on the mortgage and insisted on Yearwood sharing one-half of the losses sustained in such business. Yearwood refused to share these losses under the contract he had made, filed suit in the Circuit Court in Equity of Marshall County to foreclose his mortgage. Cole filed a cross-bill setting up the written agreement, delivered and executed by them simultaneously with said mortgage, whereby Yearwood agreed to share one-half of the losses, and setting up that various and sundry losses had been occasioned, that no settlement had been made of the partnership affairs, and asked for an accounting against Yearwood for one-half of said losses to go as a credit for the balance due on the $10,000 note, and to require Yearwood to pay the balance over and above the amount due on the note.
The testimony was taken, the cause submitted, and the court rendered a decree on the 28th of December, 1940, which was filed in the Register's office December 31, 1940, granting Yearwood the relief prayed for, and denying any credits to Cole for losses and the matter was referred to the register to ascertain and report the amount due on the mortgage of Cole to Yearwood.
The register reported that there was due, as shown by Exhibit A to his report, $1,436.40, as of January 1, 1941. In Exhibit A, which shows the method of calculating the amount due, the Register did not ascertain or give Cole credit for any losses. Exceptions were duly filed to the report of the register on the 13th of January, 1941. The court by a decree rendered February 19, 1941, overruled the exceptions to the Register's report, declined to allow any losses confirmed the report of the register and ordered that unless the debt as ascertained by the register on the mortgage was paid within forty days, with interest from Jan. 1, 1941, and the cost, that the register would on motion...
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