Hunter v. Parkman, 4 Div. 836
| Decision Date | 24 May 1956 |
| Docket Number | 4 Div. 836 |
| Citation | 265 Ala. 168,90 So.2d 274 |
| Parties | S. S. HUNTER v. R. L. PARKMAN. |
| Court | Alabama Supreme Court |
Smith & Smith, Phenix City, Chauncey Sparks, Eufaula, and Marion Rushton and Rushton, Stakely & Johnston, Montgomery, for appellant.
Paul J. Miller, Jr., and J. W. Brassell, Phenix City, for appellee.
The appeal in this case is from a final decree in favor of one partner against his copartner on dissolution and settlement of partnership affairs. The litigation between these parties has been of long duration and has come before this court, in one form or another on three former appeals, to which we will later refer in more detail.
The partnership was formed in 1946 between S. S. Hunter (appellant) and R. L. Parkman (appellee). S. S. Hunter owned a large tract of land (some 1200 acres) and some 150 cows. Houses and other structures suitable for dairy business had been erected by S. S. Hunter upon the land and he also owned some tractors, trucks and other equipment. R. L. Parkman had had long experience in the business of dairy farming and at the time was employed by Hunter. The partnership contract entered into by these parties was, in substance, that Hunter should furnish the land, houses and equipment for operation of the business together with a herd of not less than 150 dairy cattle, the herd to be kept up by him to that number by necessary replacements. Parkman was to live upon, supervise and manage the dairy farm and to furnish the labor necessary in the operation of the dairy business and the feeding of the herd. The contract was to run for a period of five years from January 1, 1946, upon the basis of an equal division of all profits derived from operation of the dairy farm, from the sale to outsiders of surplus crops grown upon the place from all increase of the herd.
The initial phase of this litigation was the filing of a bill in equity by Parkman, as complainant, against Hunter, as respondent, seeking an injunction to restrain Hunter from interfering with and destroying the partnership business by harassing Parkman and his laborers and threatening to remove from the dairy farm equipment necessary to its operation. Thereafter the bill was amended seeking the appointment of a receiver. After hearing, relief in these respects was granted to complainant and respondent appealed to this court. Hunter v. Parkman, 250 Ala. 312, 34 So.2d 221. On that appeal we affirmed the decretal orders overruling respondent's motion to dissolve the injunction and appointing a receiver. In doing so we sustained the equity of the bill, construed the contract as one committing to complainant the right of control and management of the business and sustained the conclusions reached by the trial court on the evidence taken ore tenus. Further in that opinion we took account of respondent's answer to the effect that the contract was no longer in existence when the original bill was filed, that the partnership had been dissolved by acts and conduct of complainant and that all of the property belonged to respondent and he could do with it as he pleased. To this contention we answered that the contractual relationship could only be terminated by mutual consent of the parties or by decree of a court of equity. On rehearing we noted that respondent had, in the court below, moved for an order allowing supersedeas.
After affirmance on first appeal, supra, complainant again amended his bill, the general effect of which was to seek an accounting and recovery for his interest in the partnership and for damages and compensation for his loss caused by Hunter's effecting a dissolution of the partnership and violation of the contract by taking over the assets, effects and profits of the business to the exclusion of complainant. The trial court proceeded to hear the cause and render a decree on evidence taken ore tenus before him, declared the rights of complainant in respect to the several claims of complainant, found the amount due by respondent to complainant and rendered a personal judgment against respondent and in favor of complainant. Respondent Hunter appealed from that decree and our decision thereon is reported as Hunter v. Parkman, 254 Ala. 494, 48 So.2d 878, 881.
On this second appeal, supra, we did not pass upon the sufficiency of the bill--there being no decree as to this justifying an appeal or assignment of error--nor did we enter upon any consideration of the evidence. We did, however, set out the allegations of the bill in some detail as disclosing the nature of the claims made by complainant. We reversed that decree upon the ground that it was in conflict with the settled rule that 'one partner may not recover in an action against his copartner on account of matters growing out of the firm business, until there has been a settlement and a balance found due him', and that 'Before there can arise a liability from one partner to another growing out of the partnership dealings, or for damages for reason of the failure of one to live up to his obligations under the contract in respect to its operations, there must be a partnership settlement, and if one partner has failed in that regard his liability is to the partnership and not to the partner, except as it may affect a final settlement which is only available in equity.' We observed that the bill there nowhere sought a dissolution of the partnership and that the accounting made by the court itself, without a reference was not such as is necessary in such a situation. We suggested a reference to the register or special master, to be conducted in the manner provided by Equity Rules 79, 81 and 82, Code 1940, Tit. 7 Appendix. Further, in the opinion on that appeal we dealt with items of complainant's claims, pointing out items which might or might not be proper.
Thereafter complainant again amended his bill. A demurrer thereto was overruled and again the respondent appealed. We affirmed the decree overruling the demurrer. Hunter v. Parkman, 259 Ala. 596, 67 So.2d 797.
On return of the cause to the trial court a decree was rendered dissolving the partnership. Respondent answered this amended bill, making his answer a cross bill, setting up his contentions with respect to the termination of the business and his claims as to complainant's liabilities therefrom. Thereafter the court appointed a special master, directing him to proceed in accordance with the opinion of this court on second appeal, 254 Ala. 494, 48 So.2d 878, supra. In due course the special master made his report, to which respondent filed general and special exceptions, and the cause was submitted for decree. By the final decree exceptions were overruled and the report confirmed, with personal judgment in favor of complainant for the amount found due by the master. The present appeal is from that decree.
We have hereinabove set forth the history of this case in some detail. We have done so in order to show more clearly those questions which have already been decided and as well the effect of prior decisions upon the questions urged upon this appeal. Since the decree is no more than a confirmation of the master's report,--to quote from appellant's brief--'This case has finally come down to the question of the propriety of the so-called Master's Report.'
The assignments of error are directed to several items of the master's account, to which exceptions were taken and overruled, to the fee allowed the master and to the decree as rendered.
The report of the master recites that a hearing was had at which all attorneys of record were present and submitted argument; The report then states the conclusions that It concludes also that the improvements referred to in Item 9 of the account were made with the consent and approval of the respondent. It is recited that with permission of counsel for both parties, the results of the C. P. A. audits of the operating accounts of the partnership having been established as correct to the special master's satisfaction, 'were accepted as the basis of the account hereinafter stated, using the totals only and eliminating the itemization of the lengthy accounts in this report.'
There follow several sheets in the form of an account, so arranged as to show a total column, for the partnership, a column headed S. S. Hunter and a column headed R. L. Rarkman. It commences with the item of net income for 21 months of operations, 'Per C. P. A. audit, not including labor,' under the total column $19,308.83, and one-half that amount under each column of the individual partners. The remainder of the account consists of various items 'Due by Hunter to the partnership' for removal of partnership property or other reason there assigned. At the end of the account a balance is struck showing the total assets or interest of the partnership as $59,544.57, Hunter's interest as $41,258.35 and Parkman's $18,286.22, with the following note:
'Balance due R. L. Parkman by Partnership $18,286.22
'The respondent, S. S. Hunter, having removed the assets of the partnership and forced its dissolution the partnership obligation falls on him and the said S. S. Hunter is...
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