Mabry v. Ray

• Decision Date: 04 January 1923
• Docket Number: 5 Div. 814.
• Citation: 95 So. 6,208 Ala. 615
• Parties: MABRY v. RAY.
• Court: Alabama Supreme Court

95 So. 6

208 Ala. 615

MABRY v. RAY.

5 Div. 814.

Supreme Court of Alabama

January 4, 1923

Appeal from Circuit Court, Coosa County; W. L. Longshore, Judge.

Bill by M. A. Ray against G. M. Mabry for the dissolution of a partnership existing between the parties, accounting, etc. From the decree, respondent appeals. Affirmed.

S. J Darby, of Alexander City, and Felix L. Smith & Son, of Rockford, for appellant.

J Sanford Mullins, of Alexander City, and John A. Darden, of Goodwater, for appellee.

THOMAS J.

The suit was for accounting between parties in a joint adventure. Julian v. Woolbert, 202 Ala. 530, 81 So. 32; Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So 186; Lunsford & Malone v. Shannon (Ala. Sup.) 94 So 571.

There was a register's report which was set aside by the court on the ground that the same was not comprehensive. The last order of submission contained the direction that the-

"register of this court hold a reference and ascertain amount each of the parties have paid into the partnership, including work, labor, or money, amount each has received from said partnership and the balance on hand, and to what each of said partners are entitled to receive out of proceeds in hand of register."

In obedience thereto the register made a report of his (second) reference, to which exceptions, taken by appellee, were sustained. That decree contains, among other things, the following:

"*** The court is of the opinion and so holds that the register was in error in ascertaining that the respondent, Mabry, contributed to the partnership funds the sum of $2,343.45 out of his moneys; and that the register erred in finding that it was impossible from the testimony to ascertain approximately the amount each partner received from the partnership funds.

"From like testimony the court ascertains that the complainant, the said M. A. Ray, paid into the partnership the sum of $619.12, and this without any consideration of his individual services for the partnership which was offset by personal services of respondent in the common enterprise. The court further finds from the testimony that respondent failed to contribute his one-half the expenses of services rendered by complainant's team and hand for hauling for the partnership of approximately $500, which this complainant contributed, for which he received no compensation or remuneration of the respondent, total of approximately $900 was thus contributed by the complainant, against which the respondent contributed approximately $1,100 to place the amount at the largest possible figures he could have contributed."

Under subdivision 1, section 5955, of the Code of 1907, the finding of a register based on the oral examination of witnesses is presumptively correct, and, if there is reasonable doubt as to whether it is correct, such finding should not be disturbed by the review of his holding by the trial judge or by appellate courts. Such finding has the effect of a jury's verdict. Bidwell v. Johnson, 195 Ala. 547, 70 So. 685; Andrews v. Grey, 199 Ala. 152, 74 So. 62; A. T. & N. R. Co. v. Aliceville Lumber Co., 199 Ala. 391, 409, 74 So. 441; Burgess v. Burgess, 201 Ala. 631, 79 So. 193; Clifford v. Montgomery, 202 Ala. 609, 81 So. 551; Porter v. Henderson, 204 Ala. 564, 86 So. 531.

In a reconsideration of the evidence the trial court made the basis of the final decree the fact that complainant (appellee) paid into the partnership $619.12, and further contributed to the joint adventure, pursuant to agreement or with the knowledge and consent of the partner therein, the use of a team and driver for hauling for the benefit of the joint business, which the court found to be reasonably worth and allowed the sum of $500. Having ascertained and allowed to respondent (appellant) the sum of $1,100 as having been contributed by him to the joint business, the court further found:

"From a study of the legal, relevant, and material

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