Moore v. Price , 116 Ala. 247 ( 1896 )

TIABALSON, J.

1. There is no merit in the demurrer and plea of defendants, questioning the right of complainant to maintain this suit, because of her coverture, and alleged consequent incapacity to enter into the contract of partnership with defendants, with"oufc the written consent of her husband expressed in writing, as provided by section 2346 of the Code, and without his consent for her to engage in business, as provided by section 2350.of the Code. The proof shows that before entering into said partnership she had the written consent of her husband to do so. But waiving, as unnecessary, a consideration of the question thus sought to be raised, it is a sufficient reply to this particular defense to say that this suit is by the wife, and her coverture and incapacity on account thereof to contract except in the manner allowed by statute, is a matter intended for her personal protection, and when sued on a contract executed by her alone, she may or may not plead coverture. It is a personal defense, which she, or her personal representative, if she is dead, may alone interpose. — Scarborough v. Borders, 115 Ala. 436. The defendants contracted with complainant, took her into copartnership relations with themselves for all the advantages to accrue therefrom, and having enjoyed these supposed advantages, on a dissolution of the copartnership, they cannot deny her the fruits of her association with them, because of any alleged incapacity of hers to enter into said copartnership contract. We know of no principle of equity or law, by which such a defense can be entertained.

2. On the 13th of August, 1895, Mrs.-Moore, it appears, addressed Thomas Price & Co. a letter, in which she stated, that by the terms of the contract of partnership, it was agreed that all books, vouchers, accounts and notes belonging to the partnership, should be open to inspection of any one of the partners, at any and all reasonable times, and as it was not convenient for her to personally inspect the books and ascertain the condition of the business, she 'ventured to ask them kindly to have a statement made up showing the condition of the business, the amount of the bills payable, accounts owing and those due, and generally, such information as would enable her intelligently to understand the exact condition of their partnership affairs. This request by one partner of another was not improper, and is not open to a construction that she had voluntarily withdrawn from the partnership. Her husband, who was her agent, representing her interest in the business, and who, with the other two partners, received an equal salary for their services, for reasons he gave, tending to show that his personal relations with his wife’s partners were not pleasant, had left their service, but there is nothing .in the evidence tending to show that the complainant had been guilty of any act, by -which she forfeited her place and rights as a partner. He was not instigated, so far as appears, in abandoning the service, by anything his wife had done or said. On the 14th of August, Price & Co., in the name of the partnership, addressed her a letter in reply, acknowledging the receipt of her letter, in which they said : “In reply, will say that we have no books or papers of any kind open to inspection, and have no statements to render either in books or papers, as we do not consider that you have’ any interest in our business, and do not consider you as a partner.”

This letter, in terms, excludes the complainant from participating in the partnership affairs, and denies her access to the books and papers of the firm, a right secured to her by the contract of partnership, and this, on the ground, that she was not recognized by her co-partners as any longer a member of said firm. This fact is a well recognized cause of dissolution on application to a court of equity. It also manifested that the good will, confidence and concert of effort, indispensable to the profitable management of the business no longer existed, rendering it impossible for the partners to conduct their business together according to the agreement into which they had entered. — Meaher v. Cox, Brainard & Co., 37 Ala. 201; 17 Am. & Eng. Encyc. of Law, 1107; Story on Part., §§ 275-290 ; 2 Lindley on Part., 580.

The complainant was entitled, under the pleadings and proofs, to a decree of dissolution of said partnership, and to an account as prayed for, between her and her copartners.

Reversed and remanded.