Dugger v. Tutwiler

• Decision Date: 17 April 1901
• Parties: DUGGER v. TUTWILER ET AL.
• Court: Alabama Supreme Court

30 So. 91

129 Ala. 258

DUGGER v. TUTWILER ET AL.

Supreme Court of Alabama

April 17, 1901

Appeal from chancery court, Hale county; Thomas H. Smith Chancellor.

Bill by R. B. Dugger against P. A. Tutwiler and others. Decree for defendants, and plaintiff appeals. Reversed.

For opinion on former appeal, see Tutwiler v. Dugger, 28 So. 677.

After the reversal of the decree and the remandment of the cause the bill was amended. The averments of the amended bill relating to the purchase of the land, the organization of the partnership, and the purposes for which the partnership was formed, are set forth in the opinion. In the amended bill the following additional facts were averred: The conveyance to the lands so purchased is made to the complainant, R. B Dugger, C. S. Tutwiler and Henry T. Young, but it was nevertheless understood and agreed between all the members of said firm, to wit, P. A. Tutwiler, Henry T. Young, C. S Tutwiler and this complainant, that the said Tutwiler was an interested party in said business and interested equally with the other members of said firm in all the land purchased and of the business of said firm, and shared equally with all the other members in the profits and losses of said firm.

P. A. Tutwiler negotiated the sale of said partnership land from William N. Knight and his wife Eva Knight, and was to pay therefor $500, and it was understood and agreed between the members of the partnership that all of said members should share equally in said fee, and that the fee should be considered a part of the purchase money of said land; that this fact was held out by P. A. Tutwiler to the complainant as an inducement for him to become a member of said firm; but that said P. A. Tutwiler appropriated said $500 to his own use and has, in no way, accounted to the partnership or any member thereof for any part of it. In accordance with the general plan of partnership and with the knowledge and approval of all the members thereof, the complainant paid out large sums of money in the improvement of the plantation. As a part of the consideration for the purchase of said property, was the assumption by the partnership of a mortgage which was existing upon said property at the time of the purchase, and that the partnership being unable to pay off said existing mortgage, said property was, on December 3, 1892, sold under the power of sale contained in said mortgage. During the years 1890, 1891 and 1892, said P. A. Tutwiler collected and retained large sums of money arising from the rents of said lands and has never accounted to the partnership therefor. There has never been any settlement of the partnership affairs, and that the accounts and the affairs of said partnership are so complicated, that it is impossible for them to be settled without the intervention of a court of equity, and it is averred that upon the final settlement of the same it will be shown that said partnership is largely indebted to the complainant.

In the fifth paragraph of the bill as amended, it was averred as follows: "Complainant further avers that during the years 1890, 1891, 1892, 1893, 1894, 1895, 1896, 1897, and 1898, he has been forced to pay out large sums of money on account of the indebtedness of the said partnership, and that although he has frequently called upon the said Henry T. Young, P. A. Tutwiler and C. S. Tutwiler to pay to complainant their part of the indebtedness so paid by this complainant, they have each utterly failed to do so, and that the said partnership is largely indebted unto this complainant; that there is no property belonging to the said partnership; that the purposes for which the partnership were formed utterly failed long before the filing of this bill, and that the said partnership should be settled in this court." By inserting in the prayer of said bill on the seventh line of said prayer between the words "may" and "finally" on said line, the following: "Dissolve the said partnership existing between the complainant and respondents as charged above and," so that the said prayer as amended shall be read as follows.

The prayer of the amended bill was that a decree be rendered dissolving the partnership existing between the complainant and the respondent, and that the affairs of said partnership be finally settled, and that the indebtedness of each partner to the partnership be ascertained, and the amount due complainant by the other members of the partnership, and that they be ordered to pay the same to the complainant. There was also a prayer for general relief.

To the amended bill the respondents demurred upon several grounds which may be summarized as follows: (1) Said bill, as amended, fails to aver sufficient facts to authorize the court to assume jurisdiction of the partnership and the settlement of its affairs. (2) Said bill fails to aver or show that said partnership ever owned and took possession of the real estate described in said bill. (3) Said bill as amended does not set out the alleged partnership agreement. (4) It fails to aver that said partnership ever in fact transacted any business for which it was formed. (5) Said bill does not aver the purposes for which the partnership was formed. (6) Said bill shows that the claim for an accounting and the dissolution of the partnership by this court is barred by the statute of limitations of six years.

To so much of the bill as amended as seeks relief as to the item of $500 alleged to be paid P. A. Tutwiler as attorney's fee, the defendants jointly and separately demurred upon the following grounds: (1) That said fee was paid to said P. A. Tutwiler for his individual services, and the bill as amended fails to aver or show that the alleged agreement between the complainant and the respondent that said fee should go as a part of the purchase money of said land, was supported by a consideration or was otherwise a binding obligation.

To so much of the amended bill as seeks a dissolution of the partnership, the defendants demurred upon each and every ground of demurrer assigned to the whole bill of complaint as amended.

To so much of the amended bill as seeks an accounting between the partnership, the defendants demurred upon each and every ground of demurrer assigned to the whole bill as amended.

Upon the submission of the cause upon the demurrers, the chancellor rendered a decree sustaining them. From this decree the complainant appeals, and assigns the rendition thereof as error.

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