Rose v. Beckham
| Decision Date | 22 March 1956 |
| Docket Number | 3 Div. 733 |
| Citation | 264 Ala. 209,86 So.2d 275 |
| Parties | John W. ROSE v. D. C. BECKHAM et al. |
| Court | Alabama Supreme Court |
The bill is as follows:
'To The Honorable Judges Of Said County In Equity Sitting:
'Comes, the complainant, D. C. Beckham, and alleges unto the Court as follows:
'1. Complainant is a resident citizen of Bullock County, Alabama. The residence of co-complainant is unknown to complainant. Respondent is a resident citizen of Montgomery County, Alabama. All are over the age of twenty-one years.
'2. During the year 1949 and for sometime theretofore co-complainant and respondent were engaged in a partnership known as Rose and Simpson in the business of buying and selling livestock, which firm was in early 1949 insolvent. Around April of 1949 complainant was induced by respondent and co-complainant to enter into a partnership which co-complainant for the carrying on of a similar business under the name of Beckham and Simpson, part of the inducement being that the firm of Rose and Simpson was being dissolved. The Beckham and Simpson partnership agreed to take over certain of the assets and liabilities of Rose and Simpson.
'3. The partnership of Beckham and Simpson commenced operations in April 1949 and continued to operate for about three months until late July of 1949, at which time it was ordered closed out by the Packers and Stockyards Division, Livestock Branch, United States Department of Agriculture, said partnership being then hopelessly insolvent, having an operating loss of around $58,000.00, the greater part of which complainant has had to make good.
'4. In spite of the representations that Rose and Simpson would be closed out said partnership was secretly and circumspectly and in fraud of complainant continued in operation by respondent and co-complainant, which was unknown to complainant, and from time to time and without the knowledge or consent of complainant certain of the funds of Beckham and Simpson were used to pay obligations of Rose and Simpson.
'5. At the time Beckham and Simpson was closed out by the Department of Agriculture, Rose and Simpson was indebted to Beckham and Simpson in the amount of $10,010.47, which amount is reflected in the books of Beckham and Simpson as funds receivable and in the books of Rose and Simpson as funds due to Beckham and Simpson. Said amount due to Beckham and Simpson has been ascertained by official audit of the aforesaid Packers and Stockyards Division, Livestock Branch, United States Department of Agriculture, pursuant to a winding up of the affairs of Beckham and Simpson and Rose and Simpson. Said amount has been acknowledged by J. G. Simpson and by respondent as being true, correct and due to the firm of Beckham and Simpson.
'6. Complainant has no adequate remedy at law, since partnerships with a common partner are involved.
'7. Complainant joins as co-complainant the sole other partner in Beckham and Simpson, J. G. Simpson, whose whereabouts and residence he does not know, and he offers to file with the Court such bond or other security as may be required by the Court to indemnify the said J. G. Simpson against any costs incurred in this cause.
'The Premises Considered, complainant prays that the Court will take jurisdiction of this cause and will cause its Writ of Subpoena to be issued to John W. Rose, respondent, directing him to plead, answer or demur within the time allowed by law, and will set this cause for hearing and upon the hearing thereof will order and decree that respondent pay unto him the sum of $10,010.47, with interest, and for such other, further and different relief as he may be entitled to in the premises.
'John C. Godbold
Attorney for D. C. Beckham, Complainant.'
Jack Crenshaw, Montgomery, for appellant.
John C. Godbold, Godbold & Hobbs, Montgomery, for appellees.
This is an appeal from a decree of the circuit court of Montgomery County, in equity, overruling the demurrer interposed by appellant to the bill, which the reporter will set out in the report of the case.
The bill presents an unusual situation and the research which the writer has made has pointed up the wisdom of our rule to the effect that on an appeal from a decree overruling a demurrer to a bill in equity we treat only the grounds of demurrer which are adequately argued in brief, and we wish to make it clear that in this opinion we have considered only the grounds of demurrer discussed in appellant's brief and the argument made in support of those grounds.
The general rule is that all partners must join as parties plaintiff in an action to enforce a claim in favor of a partnership and cannot sue in their partnership name. Moore & McGee v. Burns & Company, 60 Ala. 269; Simmons v. Titche Bros., 102 Ala. 317, 14 So. 786; Lister v. Vowell, 122 Ala. 264, 25 So. 564; Conn v. Sellers, 198 Ala. 606, 73 So. 961; Crook v. Rainer Hardware Co., 210 Ala. 178, 97 So. 635; 68 C.J.S., Partnership, § 208, p. 680. In Tallapoosa County Bank v. Salmon, 12 Ala.App. 589, 591, 68 So. 542, 543, it was said: 'If the indebtedness was due R. V. Salmon's Son, a partnership although the plaintiff was a member of the firm, he could not maintain an action in his individual name to recover on it.' And we have held that one partner cannot sue alone for his share in a firm claim. Fred Gray Cotton & Gin Co. v. Smith, 214 Ala. 606, 108 So. 532; Hood v. Warren, 205 Ala. 332, 87 So. 524. By § 141, Title 7, Code 1940, two or more persons, associated together as partners, may be sued at law for the obligation of all. But the provisions of § 141, Title 7, supra, do not apply to plaintiffs so associated. Moore & McGee v. Burns & Company, supra.
It has been held that where one partner will not join in a suit to recover partnership obligations that the other partner or partners may name him as co-plaintiff by indemnifying him against costs. Harris v. Swanson & Bro., 62 Ala. 299. See Bolton v. Cuthbert, 132 Ala. 403, 31 So. 358.
In the bill presently before us, it is apparent that Beckham has proceeded on the theory that he cannot sue in the partnership name nor can he sue alone, so he has joined as co-complainant his partner, Simpson, whose address he does not know, and he has offered to indemnify Simpson against any costs he may incur in the cause. Although there is no averment that Simpson has refused to join with Beckham in the prosecution of the suit, we think the fact that Simpson's 'whereabouts and residence' is unknown to Beckham makes the holding in Harris v. Swanson & Bro., supra, applicable here.
While the prayer of the bill is subject to the construction that Beckham prays for recovery for himself alone, we are of the opinion that when the prayer is considered in connection with the caption and the stating part of the bill, it is manifest that any decree which might be rendered against the respondent would have to be in favor of the partnership of Beckham and Simpson. We hold, therefore, that there is no merit in those grounds of the demurrer which take the point that this is an effort on the part of an individual partner to recover in his own name for an obligation due the partnership.
The argument made in brief of appellant in support of the insistence that the trial court erred in overruling grounds of demurrer which took the point that the equity court was without jurisdiction because the averments of the bill shown an adequate remedy at law is in material respects as follows:
'The only relief sought by the bill was the recovery of a money judgment. * * * The only allegation by which equity jurisdiction is sought to be established is the allegation of Paragraph Six 'Complainant has no adequate remedy at law, since partnerships with a common partner are involved.'
As counsel for appellant states, we did hold in Alexander v. Jones, 90 Ala. 474, 7 So. 903, that the provisions of law now codified as § 141, Title 7, Code 1940, operate to change the common law rule which was in substance that an action at law...
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Metzger Bros., Inc. v. Friedman, 1 Div. 662
...to be sued at law. 'But the provisions of § 141, Title 7, supra, do not apply to plaintiffs so associated.' Rose v. Beckham, 264 Ala. 209, 212, 86 So.2d 275 (1956). In light of these rules, it is clear that the amendment could not, as contended for by appellant, have the effect of substitut......
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