Opinion
6 Div. 896.
May 21, 1936.
Appeal from Circuit Court, Jefferson County; E. M. Creel, Judge.
Kenneth Perrine, of Birmingham, for appellant.
A partnership is never created by implication or operation of law, but the terms and conditions of the alleged partnership must be averred in terms or in substance, and the date of the alleged agreement must be set forth. Tutwiler v. Dugger, 127 Ala. 191, 28 So. 677; Little v. Snedecor, 52 Ala. 167; Copeland v. King, 224 Ala. 160, 139 So. 221; Russell v. Hayden, 201 Ala. 517, 78 So. 871. The bill must allege with sufficient detail the interest and the contribution of the partners and their rights to share in profits and losses in accordance with the terms of the agreement, and not as a conclusion of the pleader. Mayrant Co. v. Marston, Brown Co., 67 Ala. 453; Pulliam v. Schimpf, 100 Ala. 362, 14 So. 488; Hill v. Hill, 205 Ala. 33, 88 So. 224; Heller v. Berlin, 208 Ala. 640, 95 So. 10. There must be a definite reason for the termination of a partnership, and notice of the termination must be given in order to ascertain the status of said partnership on said date. Code 1923, §§ 9379, 9380, 9381.
White E. Gibson, White E. Gibson, Jr., and Dan M. Gibson, all of Birmingham, for appellee.
The bill alleges facts sufficient to warrant the relief prayed, and it was not error to overrule the demurrer. Moore v. Tucker, 228 Ala. 492, 154 So. 111; Ard v. Abele, 226 Ala. 611, 148 So. 318; Copeland v. King, 224 Ala. 160, 139 So. 221; Longshore v. Hayden, 218 Ala. 644, 119 So. 840; Williams v. Williams, 206 Ala. 125, 89 So. 272; Treadaway v. Stansell, 203 Ala. 52, 82 So. 12; Dugger v. Tutwiler, 129 Ala. 258, 30 So. 91; Tutwiler v. Dugger, 127 Ala. 191, 28 So. 677; Glover v. Hembree, 82 Ala. 324, 8 So. 251.
The bill alleges: That "there is now existing, and for to-wit, more than two years prior to the filing of this bill, there has existed, a co-partnership, the sole members of which are your orator and Ben Davis, Jr., of Birmingham, Alabama, the respondent herein; that said co-partnership now conducts, and since its formation has conducted its business under the firm name of Wood Products Company, in said City of Birmingham, Alabama; that the assets thereof are located chiefly in said City; that said co-partnership now is, and during all its said existence has been engaged in the business of manufacturing broom handles, washboards and similar wooden articles, under an oral co-partnership agreement; that said co-partnership exists only by virtue of the terms of said agreement, and that under said agreement your orator and the respondent were to share equally in the profits and losses made and suffered in said business; that said co-partnership was formed to continue for no particular or fixed period of time, and by the terms of said agreement is terminable at the will of either party thereto"; that the partnership has assets of the value of, to wit, $3,500, consisting of cash, and accounts receivable, in an amount unknown to complainant, the estimated value of $1,000; that the partners are unable to agree as to the business policies of said partnership, etc.; that the respondent is appropriating the assets of the partnership to his own use to complainant's detriment, and the partners are unable to agree upon the settlement of the partnership affairs.
These averments are clearly sufficient to give the bill equity, and the bill is not subject to the special grounds of demurrer assigned thereto. Code 1923, § 9379; Lake v. Sealy et al., 231 Ala. 466, 165 So. 399; Dugger v. Tutwiler et al., 129 Ala. 258, 30 So. 91; Tutwiler et al. v. Dugger, 127 Ala. 191, 28 So. 677.
The demurrer to the bill was properly overruled.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.