Opinion
6 Div. 27.
August 2, 1956.
Appeal from the Circuit Court, Jefferson County, Harold M. Cook, J.
Jas. M. Fullan, Jr., Birmingham, for appellants.
The bill does not inform respondents of the nature of the contract relied upon by complainant. It does not appear whether complainant is relying upon a written contract, an oral agreement made thereafter or an oral agreement merely modifying a prior written agreement. Demurrer to the bill as a whole should have been sustained. Walker v. Harris, 238 Ala. 176, 189 So. 746; Bobo v. Edwards Realty Co., 250 Ala. 344, 34 So.2d 165; Galin v. Bieker, 260 Ala. 265, 70 So.2d 254. A bill joining several parties as defendants and presenting several distinct controversies is multifarious unless each party has an interest in some matter involved and such matter is related to the others. Truss v. Miller, 116 Ala. 494, 22 So. 863; McClintock v. McEachin, 246 Ala. 412, 20 So.2d 71; Cook v. Cook, 248 Ala. 206, 27 So.2d 255. A partnership is dissolved by lapse of time prescribed by agreement for its duration. Code 1940, Tit. 43, § 33(1); 68 C.J.S., Partnership, § 61, p. 485. A partnership for a fixed term may be continued past that term only upon express or implied agreement of the parties. Henderson v. Henderson, 210 Ala. 73, 97 So. 353; 47 C.J. 735, § 144; 68 C.J.S., Partnership, § 63, p. 486.
Hogan Callaway and Robt. S. Vance, Birmingham, for appellee.
When a bill in equity shows the facts in the case and those facts show a right of recovery, the bill is sufficient. Galin v. Bieker, 260 Ala. 265, 70 So.2d 254; Montgomery v. Drinkard Auto Truck Co., 257 Ala. 685, 60 So.2d 823; Gilmore v. Sexton, 254 Ala. 560, 49 So.2d 157. In suit for settlement of partnership the essential allegations are the fact of partnership between the parties, a dissolution or the grounds for seeking one, and unsettled accounts growing out of the partnership. The agreement relied upon may be alleged in terms or in substance. Young v. Dean, 253 Ala. 211, 44 So.2d 12; Moore v. Tucker, 228 Ala. 492, 154 So. 111; Dugger v. Tutwiler, 129 Ala. 258, 30 So. 91. No writing of any particular form is necessary for creating a partnership contract. Russell v. Hayden, 201 Ala. 517, 78 So. 871. Even failure to show technical partnership does not affect equity of bill seeking settlement nor prevent granting of appropriate relief, since equity has jurisdiction to settle joint adventure as well as partnership. Young v. Dean, supra; Hill v. Hill, 205 Ala. 33, 88 So. 224. Partnership cannot be settled without presence of all interested partners. Silverstein v. First National Bank, 231 Ala. 565, 165 So. 827; Forcheimer v. Foster, 192 Ala. 218, 68 So. 879; Story's Eq.Pl. (6th Ed.) 188. There can be no settlement of partnership until there has been a dissolution. Hunter v. Parkman, 259 Ala. 596, 67 So.2d 797. When bill shows complainant is entitled to relief and there is general prayer, the bill is not demurrable by reason that special prayers are inapt or ask relief in excess of or different from that which facts alleged would warrant. Holloway v. Holland, 260 Ala. 101, 69 So.2d 289; Dickson v. Dickson, 247 Ala. 330, 24 So.2d 419; White v. Lehman, 210 Ala. 342, 98 So. 780.
Bill to dissolve a partnership, for an accounting of partnership's affairs, division of partnership assets, for the appointment of a receiver to take charge of the affairs of the partnership and to enjoin interference with the receiver in the performance of his duties, filed by the appellee against the appellants. The demurrer of the respondents being overruled this appeal results.
The bill avers the creation of the relation on November 1, 1952, to end on October 31, 1955, but avers that the partnership was doing business on November 28, 1955, the day on which the bill was filed. The bill sufficiently avers the character of the enterprise, the manner in which the partners were to share in the profits and losses, the contribution made by the partners, the exclusion of appellee by appellants from participation in the business and their refusal to make any settlement with appellee.
The partnership relation shown by the averments of the bill would entitle complainant to an accounting and settlement of the partnership business, as an independent equity, regardless of the fact that the bill was filed after October 31, 1955. So conceding without deciding that the bill fails to make out a case for dissolution, because filed after October 31, 1955, such concession would not affect appellee's right to an accounting and settlement, and we are concerned here only with grounds of demurrer addressed to the bill as a whole. In this state, according to our understanding, it has always been the law that after dissolution, or upon the happening of a cause of dissolution, any partner might go into equity for a settlement of the partnership affairs, because there is to be found the most convenient and thorough process for the settlement of such affairs. Longshore v. Hayden, 218 Ala. 644, 119 So. 840, and cases cited.
Since the partnership was organized, as averred for the purpose of engaging in and conducting the business of buying and selling steel products, machinery, and equipment and the manufacturing and fabricating of steel products, no writing was necessary to validly effect its creation. Russell v. Hayden, 201 Ala. 517, 78 So. 871; Williams v. Williams, 206 Ala. 125, 89 So. 272.
The grounds of the demurrer taking the point that the bill is multifarious as well as those pointing out that the averments of the bill are vague, indefinite and uncertain are clearly without merit and were properly overruled.
According to the authority of Williams v. Williams, supra, and the cases there cited, and Ard v. Abele, 226 Ala. 611, 148 So. 318, the bill is not subject to any of the grounds of demurrer argued in brief filed here on behalf of appellants.
The decree overruling the demurrer is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.