Reilly v. Woolbert

• Decision Date: 18 May 1916
• Docket Number: 6 Div. 976
• Parties: REILLY v. WOOLBERT.
• Court: Alabama Supreme Court

72 So. 10

196 Ala. 191

REILLY v. WOOLBERT.

6 Div. 976

Supreme Court of Alabama

May 18, 1916

Appeal from Chancery Court, Blount County; A.H. Benners, Chancellor.

Bill by S.A. Woolbert against Andrew J. Reilly and others for an accounting and to declare interest in partnership lands. From a decree for plaintiff, defendant named appeals. Reversed rendered, and remanded.

The bill of complaint as last amended shows that in April, 1905 the respondent Reilly owed complainant, Woolbert, $2,419.76 for mining coal from respondent's land, which was operated as the Fairchilds Coal & Coke Company; that in that month it was mutually agreed that complainant should have a one-tenth interest in the business of the said company for every $3,000 paid therein or put into said business; that the above "amount then due and owing complainant as aforesaid was to be applied as part payment on the first one-tenth interest to be acquired by complainant under the said contract"; that, beginning May 1, 1905, complainant was to become superintendent of the mine, on a salary of $80 a month until the output exceeded 100 tons a day, and $100 a month thereafter; that complainant could draw $50 a month of his salary, and "whatever sum became due him under his contract for services, as such superintendent, and not taken by him otherwise, should be applied on his purchase of an interest in said business as aforesaid; that by August, 1906 he had paid in $3,000 for a one-tenth interest in the business, and by October 31, 1910, he had paid in $6,046.71 and was entitled to a two-tenths interest; and that on that date respondent excluded him from participation in the business, and thereafter continued the business and refused to make any settlement with complainant. It is further alleged that respondent owned certain described real estate at the time of said agreement, and afterwards purchased for the company with its funds other described land, and that it was agreed that these lands and complainant's money contributions should be the joint property of the partners on the basis of their respective interest. The prayers, are, in substance: (1) For an ascertainment of complainant's interest in the business, and a dissolution and a settlement thereof; and (2) for a sale of the land and distribution of the assets between the parties, or for a final accounting, dissolution, and settlement of the partnership, or, if not entitled as a partner for an accounting, to ascertain what sum is due from respondent to complainant.

The demurrer to the bill in whole and in its separate parts was overruled. Several special pleas setting up the statute of frauds were held insufficient. The answer admits an executorial agreement under which plaintiff was to purchase a one-tenth interest in the business in the manner specified, but denies that it ever became effectual by his payment of the stipulated price or otherwise, and denies any indebtedness to complainant, or any interest of his in the business or in the lands owned or purchased by respondent. On submission on pleadings and evidence, the chancellor decreed that a partnership existed between complainant and respondent from May 1, 1905, to January 1, 1912, in the proportionate interest of 1 to 9, respectively, and ordered an accounting in the partnership business by reference to the register.

Sterling A. Wood, of Birmingham, and Geo. W. Darden, of Oneonta, for appellant.

M.L Ward and W.H. Smith, both of Birmingham,...