Merrill v. Smith

Decision Date20 January 1909
PartiesMERRILL v. SMITH ET AL.
CourtAlabama Supreme Court

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Action for breach of contract by Frank B. Merrill against the partnership of Charles D. Smith and others. From a judgment for defendants, plaintiff appeals. Affirmed.

The contract is as follows: Plaintiff claims of defendants $60,000 damages for the breach of an agreement entered into to wit, July 16, 1903, by the defendants, by which the said defendants agreed and promised to pay plaintiff 40 per cent of such profit as the copartnership of C. D. Smith & Co. should make from the execution of a certain contract for work of construction on the Gulf & Chicago Railroad if they should obtain said contract; such promise being upon consideration of certain promises and agreements on the part of plaintiff made, and services rendered in and about preparing the bids and plaintiff said that, although he had complied with all of the provisions of said agreement on his part, the defendants have failed on their part to fulfill their said agreement and pay to plaintiff any moneys whatsoever, although, as plaintiff avers, said C. D. Smith & Co. have claimed said contract and had made great profits upon said contract, and plaintiff avers that Charles D. Smith is his copartner of the firm of C. D. Smith & Co. The complaint was against C. D Smith & Co., a partnership, composed of main partners, and against C. D. Smith individually. The proof of the plaintiff tended to show that at the time plaintiff resigned as president of the Mobile, J. & K. C. R. R. Co. he and C. D Smith were interested as contractors and partners under the name of C. D. Smith & Co.; that on July 14, 1902, C. D. Smith came from Mobile, and plaintiff and he left and went to said Smith's room, and talked the situation over and discussed the contract to be let by the railroad company and the nature of the work in all its details and that in the general conversations which followed it was agreed between him and Smith that if plaintiff would not bid upon the projected work, but would go in with said Smith, Smith would give the plaintiff an interest in the contract, and that, in consideration of such interest, he should refrain from bidding and that he did refrain from bidding and agreed to help and did help the said Smith to formulate a bid which was thereafter accepted for said work, and, though he wanted one-half interest in the work, it was finally agreed that he should have a 40 per cent. interest therein, and that with this understanding he assisted with his knowledge and information obtained by him while an officer of the road and his familiarity with the work to be done in making up the bids...

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6 cases
  • Crim v. Louisville & N.R. Co.
    • United States
    • Alabama Supreme Court
    • January 13, 1921
    ... ... L. & N.R.R. Co. v ... Perkins, 152 Ala. 133, 44 So. 602; L. & N.R.R. Co ... v. Davis, 91 Ala. 487, 8 So. 552; Merrill v ... Smith, 158 Ala. 186, 48 So. 495; Gulf City Const ... Co. v. L. & N.R.R. Co., 121 Ala. 621, 25 So. 579; ... Tobler v. Pioneer, etc., ... ...
  • Hunter v. Parkman, 4 Div. 530
    • United States
    • Alabama Supreme Court
    • November 24, 1950
    ...on account of matters growing out of the firm business, until there has been a settlement and a balance found due him. Merrill v. Smith, 158 Ala. 186, 48 So. 495; Davenport v. Witt, 212 Ala. 114, 101 So. 887; Moody v. Headrick, 247 Ala. 455, 25 So.2d 137; Broda v. Greenwald, 66 Ala. The rea......
  • Grand International Brotherhood of Locomotive Engineers v. Couch
    • United States
    • Alabama Supreme Court
    • October 6, 1938
    ... ... Cabaniss & Johnston, L. D. Gardner, Jr., and Jos. F ... Johnston, all of Birmingham, for appellant ... Walter ... S. Smith, of Birmingham, for appellee ... FOSTER, ... On ... April 9, 1929, an investigation was conducted by R. W ... Rogers, ... notwithstanding section 5722, Code, permitting a suit against ... it without joining the partners. Merrill v. Smith, ... 158 Ala. 186, 48 So. 495. No decision on that point however ... is here made. But a different rule obtains in respect to ... ...
  • Cox v. Thomas
    • United States
    • Alabama Supreme Court
    • May 26, 1927
    ...until there has been a settlement of that business, and a balance struck between them. Phillips v. Lockhart, 1 Ala. 521; Merrill v. Smith, 158 Ala. 186, 48 So. 495; Brown, Adm'r, v. Burnum, 99 Ala. 114, 12 606. This of course predicates the existence of a partnership between Cox and Carpent......
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