Conoly v. Harrell

Decision Date05 June 1913
PartiesCONOLEY v. HARRELL.
CourtAlabama Supreme Court

Appeal from Chancery Court, Escambia County; L.D. Gardner Chancellor.

Action by J.L. Harrell against C.H. Conoley. From a judgment overruling a demurrer to the amended bill, defendant appeals. Reversed and remanded.

Leigh &amp Leigh, of Brewton, for appellant.

F.J Yerger and C.T. Prince, both of Mobile, for appellee.

McCLELLAN J.

The amended bill seeks an accounting and discovery between the parties. The appellee and appellant were the complainant and respondent, respectively, in the court below. The demurrer to the amended bill was overruled. This action is the basis of the present appeal.

The respondent was the owner of a turpentine farm in Escambia county, Ala. It appears from the bill that respondent engaged complainant to assist him in the operation of the turpentine farm. The engagement contemplated service by complainant from November 1, 1906, to January 1, 1908. Complainant was to receive one-fourth of the net profits of the business operated for turpentine purposes strictly, and $60 per month which monthly salary, in the aggregate, should be deducted from complainant's "division of the profits of the turpentine business" of respondent "for the year 1907." Aside from other provisions, in which stipulations were made for complainant's compensation by monthly salary and that the remainder (three-fourths) of the net profits should go to respondent, it was also provided that respondent should be the manager of the business and have the "exclusive right to sign notes, checks, and drafts and create any and all indebtedness," and that he (respondent) should keep or have kept "a set of account books, which books shall be closed on January 1, 1908," the date on which the engagement for complainant's services should terminate.

It is alleged in the amended bill that the agreement was reduced to writing and in duplicate; each party taking a copy. As exhibited with the bill, it does not appear to have been signed. It is averred in the bill that complainant entered upon and rendered service in accordance with the provisions of the (unexecuted) paper from November 1, 1906, to November 1, 1907, two months before the execution of the agreement as shown by the paper, when "respondent ceased making and refused to make any further payment or payments to your orator under said contract, and refused and declined to allow your orator to continue at work under said contract." One ground of the demurrer takes the objection that the agreement was void under the statute of frauds (Code, § 4289, subd. 1), for that the agreement was, by its terms, not to be performed within a year from the making thereof, and it was not subscribed as the statute of frauds requires.

Where the pleading shows on its face that the contract or agreement relied on is obnoxious to the statute of frauds, the objection may be taken by demurrer. Merritt v. Coffin, 152 Ala. 474, 44 So. 622.

In paragraph 1 of the amended bill it is averred: "That on to wit, November 1, 1906, respondent and your orator entered into a certain contract, in duplicate, of which a copy is hereto attached and marked Exhibit A and made a part hereof." The paper (unsigned) to which we have referred before is the exhibit mentioned in the quotation from the bill. The effect of the exhibition of this paper with the bill, as quoted, was to make the paper as much a part of the bill as if set out in the body of the bill; there being nothing in the bill contradictory...

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21 cases
  • Price v. University of Alabama
    • United States
    • U.S. District Court — Northern District of Alabama
    • October 23, 2003
    ...a similar argument where a turpentine farm owner retained an individual to assist in the operation of his farm. Conoly v. Harrell, 182 Ala. 243, 244, 62 So. 511 (1913). According to the agreement the individual was to assist the farm owner for a period of fourteen months. The agreement was ......
  • Norman v. Liberty Mut. Fire Ins. Co.
    • United States
    • U.S. District Court — Northern District of Alabama
    • July 8, 2020
    ...part of the contract remaining executory." Farrow v. Burns , 18 Ala. App. 350, 351, 92 So. 236, 237 (1921) (citing Conoly v. Harrell , [182 Ala. 243, 62 So. 511 (1913) ] and Scoggin v. Blackwell , [36 Ala. 351 (1860) ] ). A contract is executed, and not voided by the Statute of Frauds, if t......
  • Price v. University of Alabama, No. CV-03-CO-01790-W (AL 10/23/2003)
    • United States
    • Alabama Supreme Court
    • October 23, 2003
    ...a similar argument where a turpentine farm owner retained an individual to assist in the operation of his farm. Conoley v. Harrell, 182 Ala. 243, 244, 63 So. 511 (1913). According to the agreement the individual was to assist the farm owner for a period of fourteen months. The agreement was......
  • Grimsley v. First Ave. Coal & Lumber Co.
    • United States
    • Alabama Supreme Court
    • May 26, 1927
    ...So. 855; Pool v. Menefee, 205 Ala. 531, 88 So. 654; Piedmont Co. v. Piedmont Foundry & Mach. Co., 96 Ala. 389, 11 So. 332; Conoly v. Harrell, 182 Ala. 243, 62 So. 511; Minter v. Branch Bank at Mobile, 23 Ala. 762, Am.Dec. 315. The pleading when so considered together shows the complainant h......
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