Forcheimer v. Foster

• Decision Date: 13 May 1915
• Docket Number: 872,856
• Citation: 192 Ala. 218,68 So. 879
• Parties: FORCHEIMER v. FOSTER. BODDEN v. SAME.
• Court: Alabama Supreme Court

68 So. 879

192 Ala. 218

FORCHEIMER v. FOSTER.

BODDEN v. SAME.

Nos. 856, 872

Supreme Court of Alabama

May 13, 1915

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Action by Taylor Foster against Ferdinand Forcheimer and C.S Bodden. From a decree overruling defendants' several demurrers, they separately appeal. Affirmed.

Hanaw &amp Pillans, of Mobile, for appellants.

Ervin &amp McAleer, of Mobile, for appellee.

SAYRE J.

Appellants in the causes entitled in this court as above were parties defendant to the same bill in the court below along with others who have not joined in the appeal. They have appealed separately on one record, and seek to reverse the decree of the court below overruling their separate demurrers to the bill filed by appellee.

To state the substance of the case made by the bill: Appellee, Foster, and four others, of whom appellant Bodden was one, and all of whom are parties defendant to the bill, entered into an agreement of copartnership, under the name and style of the West Indian Wrecking Company, for the salvage of a ship's cargo of railroad iron that had been wrecked upon a reef in the Caribbean Sea. Their joint adventure--for such it was, strictly speaking--was limited to the one purpose, and that has been accomplished, leaving, however, debts to be paid and an accounting to be had of profits and losses among the partners or joint adventurers. Appellee, Foster, was the company's general and active manager at the wreck. After operations had been going on for about two years dissensions arose between the partners, with result that they divided themselves into two groups or divisions called "A" and "B." Foster continued to manage for division "A," consisting of himself and defendant Fawcett Robinson. Defendant Varian Scott was appointed to manage for division "B," composed of himself, defendant J.M. Scott, and defendant (appellant) Bodden. These sections divided at the wreck the then unsalved iron, as nearly equally as they could, each salving its own half at its own expense. Neither division, however, was to draw out the entire proceeds of the iron salved by it and brought to Mobile, but amounts realized over and above $16 a ton were to be held by Forcheimer to meet contingent expenses and to be divided at the close of operations in the proportions fixed by the articles of copartnership. It was expressly stipulated that this arrangement should not wholly abrogate the previous agreement, but should operate as an amendment only. Appellant Forcheimer acted all along as the company's agent at Mobile, to which port all shipments were made, having a written power of general attorney in fact. As such agent, he received moneys during the period of the operations. The charge against him is that he has failed to account for the sum of $1,590.96, which he "received or should have received" for the company; that he has improperly used and applied many hundreds of dollars; that without authority for so doing he has credited large sums to the account of defendant Fawcett Robinson with M. Forcheimer & Co., a firm of which he was a member; that he has failed and refused to pay to division "A" money earned by it under the agreement, though paying to division "B" all the money it earned; and that he has refused, on the demand of complainant as general manager of the company, to surrender vouchers in his hands, or copies thereof, which complainant desired to have in order to check appellant's account with the company, an unsatisfactory statement of which, it may be inferred, had been made by the latter.

Appellant Forcheimer contends that there is no equity in the bill as against him, for that complainant, suing in the name of the West Indian Wrecking Company, has a plain, adequate, and complete remedy at law. We conceive it to be a sufficient answer to this contention to say that the company, if still undissolved,...