Davis v. Holloway, 32705

• Decision Date: 10 March 1950
• Docket Number: No. 32705,No. 2,32705,2
• Citation: 58 S.E.2d 234,81 Ga.App. 158
• Parties: DAVIS v. HOLLOWAY
• Court: Georgia Court of Appeals

Page 234

58 S.E.2d 234

81 Ga.App. 158

DAVIS v. HOLLOWAY.

No. 32705.

Court of Appeals of Georgia, Division No. 2.

March 10, 1950.

Syllabus by the Court

The petition did not set forth a cause of action and the court did not err in sustaining the general demurrer thereto.

J. Cecil Davis brought an action against Charles W. Holloway, as permanent administrator of the estate of John H. Holloway, deceased, in which he alleged substantially the following: John H. Holloway, late of Baldwin County, died on January 25, 1947; thereafter Charles W. Holloway was appointed permanent administrator of the estate of John H. Holloway by the Court of Ordinary of Baldwin County; more than one year has elapsed since the appointment of the permanent administrator; prior to the death of John H. Holloway, he and the plaintiff were partners in a certain business conducted in the city of Milledgeville, Baldwin County, Georgia, known as 'Holloway's'; the said John H. Holloway owned sixty per cent interest in the business and the plaintiff owned forty per cent interest; shortly after the death of John H. Holloway and the dissolution of the partnership effected thereby, and on February 28, 1947, the plaintiff purchased from the estate and heirs of John H. Holloway the sixty per cent undivided interest of John H. Holloway in the partnership; that the books of the partnership were thereupon examined and disclosed that John H. Holloway had withdrawn from the partnership a considerable sum of money in excess of sixty per cent of the net earnings thereof, resulting in an indebtedness to the plaintiff of the sum of $3,499.19 with interest at the rate of 7 per cent from January 25, 1947. By amendment this figure was changed to $3,729.61, and the following allegations were added: '10. In carrying forward the December 31, 1941 drawing account of John H. Holloway, which was actually * * * $2,579.67, the same was carried forward to January, 1942, as * * * $2,714.05; while the drawing account of J. Cecil Davis, which was actually * * * $105.65 was carried forward to January, 1942, as * * * $396.57. These entries appear in the journal of the partnership. 11. That after determining and carrying forward to January, 1943 the drawings of John H. Holloway for 1942 as * * * $3,183.17, and the drawings of J. Cecil Davis as * * * $68.15 in the journal of the partnership, these figures were not thereafter considered in making any calculations or partnership adjustments and were dropped from the partnership accounts. 12. That during the year 1944 John H. Holloway adopted a different practice in carrying forward the drawings of the partners and instead of showing a balance carried forward each month he showed on the monthly entries in the journal only the drawings for that particular month and set forth the consolidated monthly drawings in a yearly operations balance sheet in the back of the journal. These amounts were thereafter posted to the year's balance in the accounts receivable ledger. For the year 1945 John H. Holloway drew according to this balance sheet * * * $3,855.68, and thereafter posted to his personal account in the accounts receivable ledger the sum of * * * $2,855.68 on December 31, 1945. 13. That on July 17, 1946, John H. Holloway paid to the Merchants and Farmers Bank by check No. 2399 the sum of * * * $102.80 in payment of a personal note of John H. Holloway at said Merchants and Farmers Bank and charged the same to the Investment Account of the partnership. 14. That on January 15, 1945 by check No. 1551, on February 13, 1945, by check No. 1594, on March 14, 1945 by check No. 1635, on April 12, 1945 by check No. 1679, on May 11, 1945 by check No. 1716, on June 11, 1945 by check No. 1766, on June 16, 1945 by check No. 1820, on August 17, 1945 by check No. 1862, on September 19, 1945 by check No. 1897, on October 13, 1945 by check No. 1934, on November 13, 1945 by check No. 1986, and on December 14, 1945 by check No. 2056 John H. Holloway paid the Merchants and Farmers Bank the sum of * * * $1200 in payment of his personal note, each of said checks being for the sum of * * * $100 and charged the same to the Investment Account of the partnership. 15. That on December 12, 1946 by check No. 2619 John H. Holloway paid to the Collector of Internal Revenue the sum of * * * $287.11 in payment of a deficiency in his personal income tax and charged the same to the Investment Account of the partnership. 16. That on January 15, 1947, John H. Holloway by check No. 2679 paid to the Collector of Internal Revenue the sum of * * * $470.47, representing his personal income tax payment, and charged the same to the Investment Account of the partnership, which check did not reach the bank on which drawn until after the death of John H. Holloway, but J. Cecil Davis approved the payment thereof pending the adjustment of the accounts and to avoid said check's being returned. 17. That the drawings of John H. Holloway for the month of January 1947 amounted to * * * $296.26, less a salary of * * * $150, resulting in a deficit in his account of * * * $146.26 for that month. J. Cecil Davis drew for the month of January, 1947 the sum of * * * $198.82 less his salary of * * * $100, resulting in a deficit of * * * $98.82, neither of which amounts have been charged to the accounts receivable ledger of the partnership. 18. That during the month of February, 1947, there was paid for the account of John H. Holloway and charged to his account as authorized by Charles W. Holloway, as permanent administrator of the estate of John H. Holloway, deceased, the sum of * * * $97.14. 19. That in addition to the foregoing the amounts charged to the account of John H. Holloway on the accounts receivable ledger in 1947 amount to * * * $35.59. 20. That the books of said partnership consisted solely and entirely of the journal and accounts receivable ledger above referred to. 21. That John H. Holloway kept the books of the partnership and all of the entries...