Ramsey v. Wilkins, 6 Div. 819

• Decision Date: 11 May 1950
• Docket Number: 6 Div. 819
• Citation: 253 Ala. 614,46 So.2d 407
• Parties: RAMSEY et al. v. WILKINS. HORN v. RAMSEY. , 863.
• Court: Alabama Supreme Court

Page 407

46 So.2d 407

253 Ala. 614

RAMSEY et al. v. WILKINS.

HORN v. RAMSEY.

6 Div. 819, 863.

Supreme Court of Alabama.

May 11, 1950.

A. W. Jones, of Birmingham, for appellants (and appellees) Ramsey and estill.

Robt. C. Garrison and Drennen & Drennen, of Birmingham, for appellant Horn.

Amzi Barber, of Birmingham, for appellee Wilkins.

LIVINGSTON, Justice.

Two appeals from separate rulings on demurrer, as will appear from the opinion, are consolidated and presented here on one record.

The original bill in this case was filed by J. L. Ramsey against Lambert Horn and W. L. Estill. It alleged the formation of a partnership between the three parties for the operation of a brokerage business in the City of Birmingham, Alabama, to be known as Lambert Horn and Company. It sought a dissolution of the partnership, the appointment of a receiver, the collection and sale of the assets of the partnership and a distribution of the proceeds, and general relief. No point is here presented as to the sufficiency of the original bill of complaint.

Lambert Horn answered the bill and made his answer a cross bill. J. L. Ramsey interposed demurrers to the cross bill as a whole and to the several aspects thereof. Demurrers were sustained to all of the aspects of the cross bill, save one to be noted later, and from that decree Horn prosecuted the appeal which presents one of the questions now before us for review.

Pending the suit in the court below, A. V. Wilkins filed a petition to intervene in said cause between Ramsey, Horn and Estill. Ramsey and Estill demurred to the petition of Wilkins. From a decree overruling their demurrers, Ramsey and Estill appealed. That decree presents the other question for review. We will consider the questions in the order set out above.

The original bill of complaint, as amended, filed by J. L. Ramsey alleges in substance that on, to wit, October 13, 1945, Lambert Horn, Arledge Wilkins and W. L. Estill entered into a written partnership agreement for the purpose of operating a brokerage business known as Lambert Horn and Company, a copy of which agreement as amended is marked exhibit 'A', attached to the bill of complaint and made a part thereof; that on, to wit, the 26th day of July, 1946, Ramsey purchased the interest of Wilkins, and that by written agreement, which is the amendment of the partnership agreement of October 13, 1945, Ramsey, Horn and Estill adopted the partnership agreement of Horn, Wilkins and Estill dated October 13, 1945. It further alleges disagreements of the partners in the conduct of the partnership business and seeks a dissolution of the partnership, the appointment of a receiver, the distribution of assets, etc. As above stated, the question of the sufficiency of the original bill is not before us.

In his answer Horn admits the execution of the partnership agreement of October 13, 1945, and the execution of the amendment thereto of July 26, 1946. These agreements do not contain any provision for the continuance of the partnership for any definite period of time. In his cross bill Horn, in pertinent part, alleges that in 1936 he entered the brokerage business under the name of Lambert Horn and Company; that in November 1944 he entered into a written agreement with Wilkins for the sale of said business, the agreement to take effect January 1, 1945; that under the agreement with Wilkins, Horn was to receive twenty-five percent of the gross receipts of the business for a period of ten years. Horn also reserved the right or option, upon conditions named, to repurchase from Wilkins an interest in the business. The sales agreement contains other provisions not here material. Horn's cross bill further alleges in substance that at the time of the execution of the partnership agreement of October 13, 1945, by Horn, Wilkins and Estill, that Estill 'desiring to become a partner with the said Arledge V. Wilkins in the purchase of the said Lambert Horn and Company, brought about the execution of the ostensible partnership agreement of October 13, 1945, which was intended to have the ultimate effect of a sale by this respondent (Horn) of his said business and make W. L. Estill an equal owner with the said Arledge V. Wilkins in the purchase of said business on the basis of the payment to this respondent (Horn) of one-third of the profits of said business for a period of ten years ending October 13, 1954. Also that said partnership agreement should constitute an extension and modification of the terms of the original sales contract between this respondent (Horn) and said Arledge V. Wilkins.' He further alleges that at the time the partnership agreement of October 13, 1945, was executed it was agreed between the parties that said agreement should remain in force and effect for a period of ten years and that it was not intended to create a partnership at will. He further alleges, in substance that, under the amendment of the partnership agreement of July 26, 1946, Ramsey acquired no rights other than the right of Wilkins, encumbered by the alleged obligation of Wilkins.

By amendment Horn alleged in his cross bill, in substance, that the parties to the partnership agreement of October 13, 1945, as amended by the agreement of July 26, 1946, intended that the partnership agreement was to continue for a term of ten years; that it was so agreed between the parties, but through inadvertence and the mutual mistake of the parties, the written agreement was executed without such stipulation being contained therein. As to this aspect of the bill, he prays for a reformation of the agreement in order that it be made to speak the truth and agreement of the parties. Demurrers addressed to this aspect of the bill were overruled, but we are not here concerned with that part of the decree.

As we...