McDuffie v. Hooper

• Decision Date: 03 July 1975
• Citation: 315 So.2d 573,294 Ala. 293
• Parties: William S. McDUFFIE v. William F. HOOPER. SC 1259.
• Court: Alabama Supreme Court

Page 573

315 So.2d 573

294 Ala. 293

William S. McDUFFIE v. William F. HOOPER.

SC 1259.

Supreme Court of Alabama.

July 3, 1975.

Charles S. Conley, Montgomery, for appellant.

Harry D. Raymon, Tuskegee, for appellee.

SHORES, Justice.

William F. Hooper, William S. McDuffie, and Edward L. Pryce were, at all times material hereto, members of the faculty of the School of Architecture at Tuskegee Institute. On or about November 15, 1971, these three entered into an arrangement whereby they agreed to go into business together as a consulting firm. No written agreement was ever drawn up. The testimony was that the three decided to get in the business of consulting and agreed to split any profits from the business equally among them.

Shortly after the parties decided to go into business, a brochure was printed by McDuffie stating:

'WILLIAMS S. McDUFFIE, AIA ARCHITECT & ASSOCIATES

'CONSULTANTS:

'EDWARD L. PRYCE

LANDSCAPE ARCHITECT & PLANNER

'WILLIAM F. HOOPER

ENGINEER & ARCHITECT'

The brochure contained a resume of each of the three.

In December of 1971, an agreement was entered into by 'William S. McDuffie & Associates' with the Housing Authority of the City of Tuskegee, whereby architectural inspection services were to be rendered to the Housing Authority for a sum of $44,907. There was no dispute in the evidence that, after deducting expenses, the profits were split three ways up until August, 1972, when McDuffie, who was the administrative member of the group, refused to pay Hooper any more.

Hooper filed suit alleging that the three had entered into a partnership whereby the parties formed a business under the trade name of 'William S. McDuffie & Associates,' and that the partnership agreement provided for a one-third division of the profits, less expenses. McDuffie denied that a partnership had been formed, contended that Hooper and Pryce were his employees, and admitted that the profits were divided equally among the three up until he discharged Hooper. Pryce and Hooper denied that they were employees of McDuffie and testified that their arrangement was to get into the consulting business on an equal basis, and that all profits would be split three ways.

Hooper's version of the arrangement was supported by testimony from a member of the Housing Authority and by the general superintendent of the construction firm which built the project for the Housing Authority. He testified that he dealt with Mr. Hooper almost every day during the course of the project, and that Mr. Hooper approved or disapproved subcontractors, equipment and materials for the project. His testimony was that Mr. Hooper and Mr. Pryce were on the project continuously for the first four or five months, which he said was the critical period of a project such as this; and during this time they, and particularly Mr. Hooper, made all of the inspections and McDuffie never did anything with regard to the project. At the time McDuffie informed the general superintendent that Hooper would no longer be making inspections, the project was, for all practical purposes, complete, and that any subsequent inspections were made by himself, the general superintendent of the general contractor.

Hooper sought an accounting and the balance of one-third of the profits from the project.

The trial court heard the evidence, and entered a final judgment in Hooper's favor, finding:

'Upon consideration of the evidence in this cause, the Court is satisfied from the preponderance of the evidence that there was a joint venture among the parties whereby the parties . . . agreed among themselves to carry out the contract made in the name of William S. McDuffie and Associates with the Housing Authority of the City of Tuskegee whereby the said parties were to divide the proceeds of the contractual agreement into three equal parts after deduction of the expenses incurred by them in carrying out the terms of the contract. It appearing from the evidence that the Defendant, Edward L. Pryce, was not involved in any way in handling of any of the finances which finances were handled by the Defendant, William S. McDuffie, who received all of the proceeds of the contract and distributed the money according to the agreement, and the said William S. McDuffie having filed in this Court a statement showing that Edward L. Pryce received the sum of $13,718.00 as his share of the proceeds from the project and that the Plaintiff, William F. Hooper, received only $6,344.26, but the Defendant, William S. McDuffie not seeing fit to reveal to the Court the amount received by him, the Court is of the opinion that the Plaintiff is entitled to recover of the Defendant, William S. McDuffie, the difference between the amount received by him of $6,344.26 and the amount received by the Defendant, Edward L. Pryce, who received $13,718.00, and the Court finds that the difference is $7,373.74.'

This appeal is from that judgment.

Appellant argues that the trial court erred in finding that the parties had engaged in a joint venture to carry out the contract made with the Housing Authority of the City of Tuskegee, saying in brief, 'even though the complainant had alleged, merely the existence of a partnership,' and argues that the evidence fails to show that a partnership agreement was ever entered into.

It is not entirely clear from the assignments of error, nor from appellant's brief, whether he is arguing that there was no allegation of a joint venture, and that therefore that issue was not framed in the pleadings, or whether he is arguing that the court erred under the proof in finding that there was a joint venture among the parties.

If his argument is founded on the former proposition, we think that is answered by Rule 15(b), ARCP, which provides:

'When issues not raised by the pleadings are tried by express or implied consent of the parties, the...