Davenport v. Witt

• Decision Date: 30 October 1924
• Docket Number: 7 Div. 504.
• Citation: 101 So. 887,212 Ala. 114
• Parties: DAVENPORT ET AL. v. WITT.
• Court: Alabama Supreme Court

101 So. 887

212 Ala. 114

DAVENPORT ET AL. v. WITT.

7 Div. 504.

Supreme Court of Alabama

October 30, 1924

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Action on the common counts by L. W. Witt against E. C. Davenport and others as executors of the estate of E. A. Cook deceased. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under section 6, page 449 Acts 1911. Affirmed.

Hugh Reed, of Center, for appellants.

Motley & Motley, of Gadsden, for appellee.

SAYRE J.

We can see no merit in that assignment of error taking the point that defendants' demurrer to the several counts of the complaint should have been sustained. The action, both its original and final shape-an intervening amendment having been withdrawn-was against defendants, appellants, as executors etc., and, as for the rest, was in Code form. Code, § 5382, p. 1195.

The claim in dispute arose out of the operation of a telephone line from Cedar Bluff, in Cherokee county, to Rome, Ga. Plaintiff, defendants' testator, and others owned the line jointly. By agreement plaintiff operated the line, was to keep it in repair, and pay for its connection with the switch board of the Southern Bell Company at Rome. Defendants' testator and the other joint owners were to pay tolls for messages, as did outsiders. Defendants insisted that there could be no recovery in this action at law for the reason that there had been no settlement of the partnership affairs, and requested several special charges asserting this proposition in different forms. These charges were refused upon the idea that there was evidence tending to show a settlement of the partnership affairs between the partners, that is, between plaintiff and defendant executors a balance struck, and an acknowledgment by defendants, as executors, of the indebtedness of the estate in agreement therewith. There was such evidence, though the matter was in dispute, and the court correctly refused the charges referred to. One partner cannot sue his copartner at law, even after a dissolution, unless there has been a settlement of the partnership accounts and a balance struck (Broda v. Greenwald, 66 Ala. 542), but, when a partnership has been dissolved, and upon settlement a balance found due to one of the partners, assumpsit will lie for the amount so ascertained. Pope v. Randolph, 13 Ala. 214.

And so in substance the trial court told the jury in that part of the oral charge to which exception was reserved. It is true that a mere statement from the partnership books will not suffice to sustain a suit by one partner against another ( Morrow v. Riley, 15 Ala. 710); but here there was evidence tending to show a balance struck between plaintiff and the two active executors, and a promise by one of defendants, as executor, to pay accordingly, that is, there was proof of a balance struck in agreement with the book of account kept by plaintiff, evidence besides tending to support the correctness of the items of the account in part at least, and, as we have said, a promise by one of the defendants, as executor, to pay, by which we intend to say that the jury were authorized so to find because there was evidence tending to the effect that, upon balance struck, one of defendants drew a check payable to Cedar Bluff Local Telephone Company, meaning plaintiff, who, besides his interest in the line to Rome, individually owned and operated a local telephone exchange at Cedar Bluff, to which also testator was indebted, such indebtedness being included in the amount of the ascertained balance, said check bearing this notation, "This check given in payment of telephone acct. Estate." The general rule is that the allowance or rejection of a claim against the estate by one of two or more personal representatives is binding upon the estate. 24 C.J. p. 373, § 1038. In this connection see Scruggs v. Driver's Executors, 31 Ala. 274; Hinson v. Williamson, 74 Ala. 195.

The statute of nonclaim was pleaded but the evidence showed without contradiction that letters testamentary were issued to defendants...