Costello v. Montague , 101 Ala. 426 ( 1893 )

COLEMAN, J.

The main purpose of the bill was to compel a settlement of the partnership of Wm. PI. Montague & Co., a firm composed of Wm. H. Montague and C. H. Costello. It alleges the dissolution of the firm, that there are no debts unpaid, and that there has never been a settlement of the partnership affairs. At the hearing the chancellor ordered a reference to the register to state an account of the partnership transactions between the partners. This appeal was prosecuted from the decree ordering a reference. There was no demurrer to the bill, or objection for want of equity. The respondent Costello answered the bill, and in his answer, embodied a plea, to the effect, that, by mutual agreement, the parties between themselves had settled and closed the partnership matters. We agree with the chancellor that the evidence does not sustain the plea, and it is not insisted upon in argument. The real defense to the relief prayed is, that the partnership matters were so loosely and negligently conducted that it is impossible to state an account which will be approximately correct. On this point, no witnesses were examined except the parties themselves. In some respects their testimony is irreconcilable. But this condition of the evidence can not interfere with a proper determination of the disputed facts. There were certain presumptions of law, and rules as to burden of proof, which declare legal conclusions, in favor of the one or the other side, when the evidence is evenly balanced for and against a disputed fact. Cases have arisen where all the partners kept their accounts so loosely and confused that the courts refused to undertake to adjust their matters and to state an account between them, but it would require an extreme case to justify this conclusion in advance of an attempt to state the account. On a reference the register may receive other evidence than that before the court, when the reference is ordered, and a decree of confirmation will not be refused if the evidence should clearly show a balance in favor of one partner, because it was impossible to make a precisely accurate statement of accounts. 17 Amer. & Eng. Encyc. of Law, p. 1274.

The bill may not be as definite in its averments as good pleading requires, but it was not objected to on this account, and under the pleading and facts thus far disclosed in the record, there, was no error in the decree ordering a reference. — Glover v. Hembree, 82 Ala. 324, 8 So. Rep. 251; Haynes v. Short, 88 Ala. 562, 7 So. Rep. 157.

Affirmed.