Cowles v. Garrett's Adm'rs

STONE, J. The contract declared on in this case is a refunding bond. It recites that defendant had received of plaintiff ¡$4,420, “0n my” (his) “claim in the share of John II. Broadnax in the company of "Ware, Dougherty & Co.;” and said defendant, by said bond, bound himself to refund said amount, with interest, if his claim “on the share of the said John II. Broadnax shall be or is unfounded;” and also “to refund, with interest, any amount that may be overpaid” in the partial settlement that day made. The contract no where informs us of the nature or purpose of the company of Ware, Dougherty Co., or who composed the “company.” Neither does it disclose the nature or extent of Garrett’s interest in the share of Broad-nax ; or, of what Broadnax’s interest consisted. Hence, — 348 — without the aid of extrinsic facts, we are unable to determine specifically to what this bond relates, or the extent of the obligation created by it, or on what contingency it imposes a liability. “"When a written contract, although complete in itself, contains a term which it is impossible for the court to construe without the aid of evidence aliunde, it is proper to resort to such evidence for that purpose.” — Drake v. Goree, 22 Ala. 414; Casey v. Holmes, 10 Ala. 786; Phil, on Ev., Cow. & Hill’s notes, vol. 3, p. 1399, note 957; Doe v. Holton, 4 Ad. & Ellis, 81; Talliaferro v. Brown, 11 Ala. 707. The second plea avers, that the company of "Ware, Bougherty & Co. was a partnership, composed of said John IT. Broadnax and several others, created for the purpose of buying and selling lands for a profit; that said Broadnax had procured from Cowles all the money he advanced as his share in the purchase of said lands ; that Broadnax assigned to Cowles so much of his interest in said partnership as would repay to him the money received from him, and one half the. profits; that said share of Broadnax was managed and controlled by Cowles ; that Broadnax subsequently assigned to Garrett the remaining half interest in his share of the profits of said partnership; that the lands described in the writing obligatory declared on, were received by Cowles from the company of Ware, Bougherty & Co., m virtue of the share of Broadnax in said company so represented by him, Cowles, and that the same lands were passed over to Garrett on the interest he claimed in said share; that the affairs of the company not being settled, Cowles took from Garrett the refunding-bond sued on; that the affairs of the partnership of Ware, Bougherty & Co. had not, at the commencement of this suit, been settled up, and no balance had been struck, showing the amount due the several partners, but that the same remained unsettled; that the amounts due the several partners could not be ascertained without a settlement. of the partnership accounts; and hence this action could not be maintained, until such final settlement of the accounts, ascertaining an admitted balance. — 349 — This plea also brings to view another company for speculating in lands, known as the “Benton Land Company.” We are at a loss to know for what purpose this is done. The contract sued on relates in terms to the interest of Garrett, as assignee of Broadnax, in the company of Ware, Dougherty & Co., and makes no allusion to the Benton land company. The plea does not aver that the assignment by Broadnax to Garrett, conveyed to the latter any interest in the Benton land company, nor does it aver that either Cowles or Garrett had any interest in the said last named company, or that the settlement of the latter copartnership is at all material to the settlement of the former. Under these circumstances, we feel bound to disregard all averments relating to the Benton land company, as being foreign to this proceeding. It is contended that both plaintiff and defendants’ intestate, when they purchased the several half interests of Broadnax in the company of Ware, Dougherty & Co., took his place, and themselves became partners in that firm. It may be conceded that, according to the aver-ments of the plea, Cowles was recognized by the firm as one of its members, and hence must be pronounced a member in lieu of Broadnax. — See Rowland v. Boozer, 10 Ala. 695. But the plea contains no averment which can constitute Garrett a partner. It is not shown that he exercised any control, or that his claim to any portion of the share which stood in Broadnax’s name was recognized by, or even known to the firm. The payment made by Cowles to him shows that he, Cowles, had notice of the claim; but the refunding bond proves that he distrusted its bona fides. The plea does not infonn us that the firm made any purchases or sales, or did any active business, after Garrett received the assignment from Broadnax. So far as we are informed, it was a mere transfer and authority to him to receive the half profits, executed after the partnership had ceased its active operations. This was not such a participation in the profits and losses as would constitute him a partner. — Elsworth v. Tartt, 26 Ala. 733; Moore v. Smith, 19 Ala. 774. — 350 — The plea we are considering discloses a state of facts, which, constitutes the plaintiff and defendant’s intestate, tenants in common of Broadnax’s interest in the profits of the partnership named in the bond. In such case, so long as the subject-matter of the tenancy in common remains, no action at law can be maintained by one against the other. But, if one tenant in common sell the entire property, his co-tenant may sue at law. — Perminter v. Kelly, 18 Ala. 716, and authorities cited. So, if the subject-matter of the tenancy in common be sold by one, and reduced to money, the other may sue in assumpsit, and recover his part of the money. — Martin v. Knowllys, 8 T. R. 145; 1 Chit. Pl. 45. Construing this bond under the rule above declared, and assuming that the averments of the second plea present the surrounding circumstances, the extrinsic facts, showing the meaning and import of the term in the contract “share of John H. Broadnax in the company of Ware, Dougherty & Co.,” we feel constrained to hold, that the bond in this case did not, in each of its aspects, impose on Garrett a present liability; but that he thereby bound, and intended to bind himself, first, to refund the money to Cowles, in the event he, Garrett, had no authority to receive it; in other words, if the half interest had not been assigned to him. In this aspect, the bond wras suable immediately; the right to recover depending on the question whether he was in fact the assignee of the interest. The bond, in the second place, required him to refund, with interest, any overpayment Cowles may have made him on that partial settlement. The giving and taking of this bond, under the circumstances, shows that the account was not then in a condition to be settled. Otherwise, we can perceive no reason why the settlement was not then made. The parties did not and could not know whether the sum then advanced was not an overpayment; and hence Cowles took the bond to refund. Refund when ? Not presently. If that had been the intention, we can imagine no reason why Cowles, instead of taking Garrett’s bond to refund, should not — 351 — then have ascertained the share to which Garrett was entitled, and, instead of the board, taken the money obligation of Garrett to pay the balance of the purchase-money. If ho still doubted Garrett’s right to the half profits to which Broadnax had been entitled, a refunding bond would have been as appropriate in form, as its object was prudential. A more rational construction of this contract, when viewed in the light of the surrounding circumstances, will bo to hold that Mr. Garrett bound himself to refund, when by final settlement of the affairs of the partnership, it should be ascertained whether Cowles had overpaid Garrett, and the extent of such overpayment. — See Talliaferro v. Brown, 11 Ala. 702. This construction will settle the controversy in one proceeding, au.d accords with the policy of the law, which abhors circuity of action. If it be objected that undue delays and hardships are by this construction imposed on Cowles, the answer is, first, that he thus made his contract ; second, that having the control of the share of Broadnax in the company of Ware, Dougherty & Co., it was at all times in his power to hasten the settlement, and thus perfect his right of action. We hold, then, that the bond sued on in this case, was not, in its second aspect, suable, until by a settlement the share of Broadnax in the company of Ware, Dougherty & Co. had been ascertained. Till then, the question of liability and its extent was not susceptible of ascertainment. If it be objected that the special counts in the declaration are defective, because they fail to aver a previous settlement of the affairs of the partnership, the answer is, that neither the bond nor declaration discloses the outside circumstances, or informs us that a settlement was a necessary prerequisite. The plea first brings this question to our notice ; and that being the case, it is sufficient that the obstacle is removed by the replication. A declaration need only show a prima-facie right of action. Each count in the declaration contains a good and substantial cause of action. The second plea is sufficient, because it avers that no settlement of the accounts of — 352 — Ware, Dougherty & Co. bad been bad before tbis suit was brought. . Each replication is a full answer to the plea, because each avers that the partnership effects of Ware, Dougherty & Co. had been fully settled before the institution of the suit. The circuit court erred, imsustaining the demurrer to the replications; and for that error, the judgment is reversed, the non-suit set aside, and the cause remanded. Bice, C. J., not sitting.