Hunter v. Parkman
| Decision Date | 26 February 1948 |
| Docket Number | 4 Div. 475. |
| Citation | 34 So.2d 221,250 Ala. 312 |
| Parties | HUNTER v. PARKMAN. |
| Court | Alabama Supreme Court |
Rehearing Denied March 11, 1948.
Appeal from Circuit Court, Russell County; J. B. Hicks Judge.
Smith & Smith, of Phenix City, for appellant.
J W. Brassell and A. L. Patterson, both of Phenix City, for appellee.
This appeal is from the order of the circuit court overruling the defendant's motion to dissolve the injunction and the order appointing a receiver to take charge of the assets of the dairy pending the litigation.
The motion to dissolve the injunction is rested upon want of equity in the bill, the denial of the sworn answer and affirmative facts alleged in the answer. The court set these motions down for hearing, and proof was taken by testimony of witnesses examined ore tenus, covering more than 100 pages of the transcript.
After consideration of this testimony the court denied the motion to dissolve, appointed a receiver to take charge of the assets of the business, requiring the receiver to execute a bond in the sum of $5,000, which was duly executed and approved by the register.
The allegations of the bill, to state the substance thereof, are that on the 11th of February, 1946, the defendant Hunter owned a plantation just south of Uchee Creek and east of U. S. Highway 241 in Russell County, consisting of approximately 1,200 acres, upon which was located a dairy barn and a residence for use in the operation of the dairy, a herd of dairy cattle and equipment, consisting of trucks, tractors and other dairy equipment. On said date, the parties to this litigation, said Hunter and complainant Parkman, entered into a contract in writing duly signed, copy of which is attached and made a part of the bill.
The substance of the contract is that said Parkman should live on, supervise and manage said dairy farm for a period of five years from January 1, 1946, upon the basis of a division of all profits derived from the operation of said dairy farm, to be determined by an accounting monthly. Hunter agreed to furnish the lands, the houses and the equipment for the operation of the business and Parkman agreed to furnish the labor necessary in the operation of said dairy business, and the feeding of the herd. The contract provided that the maintenance of all trucks, tractors and equipment necessary to the operation located on said premises and the cost of all feed, fertilizer, gas, oil, electricity 'and such other expenses as may be incurred in the care and production of milk,' other than the labor, was to be deducted from all profits realized from the operation of said business.
Hunter agreed to keep a herd of dairy cattle of not less than 150 head or more to be of the same type and grade as the cattle then on said dairy plantation and to replace cattle sold or that should die and that the parties should share equally in the profits of all crops raised on said farm, not used for feeding purposes, sold to outsiders. That the dividends in the Wells Dairy and Algo Feed Company should be treated as profit and accredited to the business during the life of the agreement.
That all increase of the herd during the operations under the contract should belong jointly to the parties. That all bookkeeping, receipt of all funds and deposits thereof and the signing of all checks which were issued would be drawn by Parkman, who should keep the accounts and records of all transactions, purchases and sales and that a monthly statement should be made for the determination of the profits.
The bill further alleges that said contract is still in force and effect and that the complainant in carrying out the terms of said contract has invested his time and labor for about two years and put $15,000 into said undertaking and that the said dairy business at that time was a paying concern. That complainant is in possession of the premises and operating and managing said dairy to the mutual benefit of the parties. That he has greatly improved the soil and cleared additional lands for use; that said dairy plantation is now in condition to begin to produce and pay returns on complainant's investment.
That the respondent has begun to harass, threaten, interfere with and move off of said premises the property and equipment used in the operation of said dairy and necessary to its successful operation, against the wish and over the objection of the complainant. That unless the defendant is prevented from further sabotage of the business and property used in and necessary to the operation of said business, complainant will suffer irreparable loss.
The bill further avers that the defendant needlessly enters upon said premises and takes charge of complainant's labor, and that members of the defendant's family, his agents and employes enter upon the premises and assist defendant in harassing the complainant and in removing property, in violation of the contract between the parties. The defendant has interfered with collection of the moneys due for the dairy products sold to customers, and cramped the complainant in procuring feed and the payment for labor.
The answer filed by the respondent admits some of the material allegations of the bill,--that the parties entered into said contract which is attached as an exhibit to said bill; but denies the existence of said contract at the time of the filing of the bill and sets up affirmative matter in his answer touching the controversy between the parties going to show his general attitude to be that the partnership has been dissolved by the conduct and acts of complainant and all of said property belongs to defendant and he has the right to do with it as he pleases.
After a full hearing, as heretofore stated, the circuit court denied the motion to dissolve, appointed a receiver and confirmed said appointment on motion for rehearing by the defendant.
The appellant insists that the verification of the bill is defective in that it is based on 'the best of affiant's knowledge, information and belief.' No objection was made to this verification in the trial court. Moreover the verification of defendant's answer is in the same form. These matters are not presented here for review on this appeal.
Appellant further insists that there is an absence of averment in the bill that...
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Ingram v. Omelet Shoppe, Inc.
...to appoint a receiver or take some less drastic action is within the sound discretion of the trial court. See, e. g., Hunter v. Parkman, 250 Ala. 312, 34 So.2d 221 (1948). As recognized by this Court in Hunter, the decision to order a receiver must be "based upon the fact that there is no o......
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Hunter v. Parkman, 4 Div. 530
...a court of equity in a case which was previously before this Court on an interlocutory matter. The previous appeal is reported in 250 Ala. 312, 34 So.2d 221. A reference to that case will show that the complainant and respondent entered into a written contract of partnership effective for f......
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State v. Southland Hatchery, 3 Div. 553
...operations have been carried on by partnerships. McCrary v. Slaughter, 58 Ala. 230; Autrey v. Frieze, 59 Ala. 587; Hunter v. Parkman, 250 Ala. 312, 34 So.2d 221. Although all of the members of the partnership do not devote their personal attention to the actual operation of the farm, still ......
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Davis v. Ross, 4 Div. 607
...Lindsey v. Viking Refrigerators, 241 Ala. 425, 3 So.2d 65; Dudley v. Whatley, 244 Ala. 508, 14 So.2d 141, 147 A.L.R. 508; Hunter v. Parkman, 250 Ala. 312, 34 So.2d 221; McLean v. Church of God, 254 Ala. 134, 47 So.2d 257. And on the basis of this principle, we have decided it is probably be......