Zingelmann v. Turner

• Decision Date: 16 December 1937
• Docket Number: 1 Div. 986
• Citation: 177 So. 627,235 Ala. 102
• Parties: ZINGELMANN v. TURNER et al.
• Court: Alabama Supreme Court

177 So. 627

235 Ala. 102

ZINGELMANN v. TURNER et al.

1 Div. 986

Supreme Court of Alabama

December 16, 1937

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Bill for accounting by Walter Zingelmann against J. Tyler Turner and another. From a decree for respondent Turner, complainant appeals.

Reversed rendered and remanded.

Francis H. Inge, of Mobile, for appellant.

Jere Austill, of Mobile, for appellees.

BROWN Justice.

The appellee Turner on February 15, 1935, brought an action of assumpsit against appellant for $10,486.32, alleged to be due from him by account on January 7, 1935, and for "money paid by the plaintiff for the defendant on to wit the 7th day of January, 1935, at the request of the defendant."

On April 16, 1935, appellant, defendant in the circuit court filed a motion alleging in substance that said alleged indebtedness arose out of a partnership or joint adventure between plaintiff, the defendant, and one Leatherbury entered upon in the year 1927, by engaging in the business of purchasing and exporting logs, under the terms of an agreement by which plaintiff in the action was to receive 20 per cent. of the profits, and defendant and Leatherbury were to pay the office expenses, and divide the remaining 40 per cent. between them; all other expenses and losses to be shared equally, and that said partnership affairs cannot be equitably adjusted and settled in the action at law to which Leatherbury is not made a party.

On the hearing of the motion the case was ordered transferred to the equity docket, and thereupon appellant became the actor, as the statute requires, and filed his bill, making the plaintiff and Leatherbury parties defendants. Code 1923, § 6490; Cornelius v. Moore, 208 Ala. 237, 94 So. 57.

The bill alleges, in short, that the complainant, Turner, and Leatherbury, in the year 1927, entered into an oral agreement of partnership which was to be known and called "Leatherbury and Zingelmann," for the purpose of engaging, for mutual profit, in the business of purchasing and exporting logs. That said business continued until August, 1934, when the same was dissolved without settlement of the affairs thereof between the parties thereto.

That at the time complainant and Leatherbury were experienced exporters and that Turner was possessed of financial means and credit to sustain said business, and the agreement between the parties contemplated that complainant and Leatherbury would contribute their services and experience and their established logging connection to said business and that Turner would supply the capital, and the Turner's share of the profits after all expense incident to said business, other than office expenses, to be borne by complainant and Leatherbury, was to be 20 per cent., and after paying the office expenses, the remaining 40 per cent. should be equally divided between complainant and Leatherbury, and during the continuance of said business all three of the parties shared the losses, with the exception of what was termed office expenses. The bill prays for an accounting and settlement of the affairs of said venture.

The defendants filed a joint answer, in which they deny "that there was ever any partnership between them and the complainant."

They admit that the said Turner loaned the partnership of Leatherbury & Zingelmann...