White v. Jackson

• Decision Date: 06 January 1953
• Docket Number: 6 Div. 496
• Citation: 62 So.2d 477,36 Ala.App. 643
• Parties: WHITE v. JACKSON.
• Court: Alabama Court of Appeals

Page 477

62 So.2d 477

36 Ala.App. 643

WHITE v. JACKSON.

6 Div. 496.

Court of Appeals of Alabama.

Jan. 6, 1953.

Perry Hubbard, Tuscaloosa, for appellant.

Jas. W. Aird, Birmingham, for appellee.

CARR, Presiding Judge.

The complaint in this case is cast in three counts. The first count is in code form and declares upon an account. The second is also in code form and states a claim for money had and received. The third count purports to be for work and labor performed by the plaintiff for the defendant, but it fails to conform exactly to the code form. The difference consists in a failure to allege that the work and labor were done at the request of the defendant.

All three counts, according to the allegations, seek to recover the same amount and by reference to the evidence all relate to the same transactions.

The verdict of the jury is: 'We the jury find for the plaintiff T. C. Jackson and assess the damages at $535.96.'

The court overruled demurrers to the complaint and each count thereof. Insistence for error is predicated on this ruling of the court as it relates to count three of the complaint.

It is well established by the authorities in this jurisdiction that, if there is at least one good count in a complaint and the proof sustains its averments, the verdict of the jury and the judgment thereon are referable to the good count. This rule prevails although other counts may be bad.

In this state of the record harmful error will not be charged in the action of the court in overruling demurrers to a bad or insufficient count. Shannon v. Lee, 178 Ala. 463, 60 So. 99; Finney v. Newson, 203 Ala. 191, 82 So. 441; Alabama Power Co. v. Lewis, 224 Ala. 594, 141 So. 229; Fagan Peel Co. v. Harrison Co., 16 Ala.App. 470, 79 So. 144; City of Birmingham v. Lynch, 29 Ala.App. 242, 197 So. 46; Brush v. Rountree, 33 Ala.App. 227, 32 So.2d 244.

In January 1946 the plaintiff, T. C. Jackson, and the defendant, V. L. White, entered into an oral contract. The effect of the agreement was that the parties would go into the roofing business. Mr. Jackson was to look after the jobs and Mr. White was to furnish the necessary amount of money for the operation. The net profit from each completed job was to be divided equally between the two parties.

During the operative pendency of the agreement some jobs were undertaken with the express understanding that the criterion of division would be based on a 'reasonable profit.'

The defendant furnished the plaintiff weekly or monthly statements of the profits from completed jobs, and settlements were made on the indicated basis.

This relationship continued until July 1948, at which time Mr. Jackson gave Mr. White notice of his desire or intention to terminate the business relationship.

A meeting between the parties resulted in partial settlements. These included certain undivided profits from completed jobs and a division of the physical assets of the business relationship.

The controversy which forms the basis of the instant suit arises out of Mr. Jackson's claim that the amount he received in settlement did not include his profits on certain completed jobs on which no prior accounting had been made.

During the time the parties were in business many roofing jobs were taken and completed. In the main, the net profit from each of these was small in amount.

The record evidence is much in detail and is rather involved and complicated. This is due to the inquiry into the circumstances of so many separate roofing jobs.

In relation to some, Mr. White testified that he had been unable to locate his records and consequently he could not state whether or not net profits were realized or for that matter whether he had received payments from the owners for the work done.

The effect of appellant's testimony is that the appellee had not received his share of the profits from all the completed jobs, but the total of these unpaid amounts was a sum less than that found by the jury even after taking into account interest allowance.

Phases of the evidence support appellee's position that these balances were equal to or in excess of the amount of the judgment.

This takes into account the claim that appellee was indebted to the appellant for some roofing. The evidence in this aspect was in dispute. The appellee contended that this item was included in the calculations at the time of the settlement.

In this state of the record there is no merit in appellant's insistence that the verdict was excessive and that the motion for a new trial should have been granted on this ground.

Ground number 5 of appellant's motion for a new trial is as follows:

'The verdict is contrary to the law of the case in that plaintiff was permitted to recover in an action of general assumpsit for debts existing as a result of a partnership or joint adventure with defendant where it affirmatively appeared that there had been no settlement of the accounts of the joint adventure or partnership and where it affirmatively appeared that no balance had been struck.'

The claim for error in this aspect is presented in the manner just above indicated by the request for the general affirmative charge, both with and without hypothesis; and by tender of written instructions.

In detailing the terms and conditions of the working agreement, appellee testified:

'Q. Do you have any understanding as to what the losses were, expressed or implied? A. Losses were not mentioned.'

The appellant gave this version:

'Q. This business was not a partnership? A. No, sir.

'Q. What was the arrangements you made about it? A. Well, it was...