Brody v. Maril , 208 Ala. 464 ( 1922 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Construing the allegations of the bill more strictly against the pleader, it must be intended that there was some sort of effective dissolution of the partnership, and an accounting thereof, in the early part of the year 1907, about 12 years prior to the filing of the bill.

As a bill for an accounting and settlement of partnership affairs, more than six years having elapsed since the last partnership transaction, this suit is effectually barred. Stovall v. Clay, 108 Ala. 105, 20 So. 387, and cases cited therein.

But the original bill shows that, though there was no formal dissolution nor settlement, there was nevertheless a discontinuance of the partnership business, and that it was then "ascertained that there was distributive the sum of $16,000 between them," and that, "on account of his share therein, orator received from respondent sundry sums of money which would leave a balance due orator of about $6,000." If these allegations are true, complainant has a clear legal remedy for the recovery of this ascertained balance, and there is no equity in the bill.

Without withdrawing or modifying those allegations, the bill was amended by adding allegations that respondent "claims" to have tendered to complainant a complete account of the said partnership, and to have settled accordingly, but that said alleged statement was a false and fraudulent one in certain particulars named; the conclusion being that, by reason of various fraudulent concoctions and omissions, the true amount of partnership assets is $30,000, half of which belongs to complainant.

As the amended bill stood, it was clearly subject to those grounds of demurrer which pointed out its self-contradictions and uncertainties.

But if, waiving those defects, the amended bill should be viewed as a bill to surcharge and set aside an actual accounting for fraud and suppression, it ought to set out the statement of account thus sought to be falsified; and, if ignorance of fraud and error in the settlement is alleged as an excuse for the delay in filing the bill of complaint, the bill should go further and "show some fact which could reasonably have superinduced his ignorance — what it was aroused his suspicious and quickened his diligence in examining and inquiring into the correctness of the accounts and settlement. An allegation of ignorance of material facts and of subsequent discovery, not thus specific and proved, cannot * * * relieve from the imputation of laches, when laches is material." Paulling v. Creagh's Adm'rs, 54 Ala. 646, 654; James v. James,55 Ala. 525. And such a bill "should contain distinct averments as to the time when the fraud or mistake was discovered, so that the court may see whether, by the exercise of ordinary diligence, the discovery might not have been made before." 1 Corp. Jur. 717, § 361; James v. James, supra. These requirements are not met by the allegation merely "that it is through the examination of these books which the respondent brought to Birmingham that complainant discovered the frauds which had been perpetrated on him." That allegation is, indeed, wholly inconsistent with the preceding allegation that respondent had refused to allow complainant to inspect the partnership records and accounts. Nor is the theory of complainant's excusable ignorance of his rights consistent with the allegation of the bill that, since the alleged ascertainment of the balance of $16,000, he "has repeatedly applied to respondent to come to a final settlement of the partnership accounts." That allegation is inconsistent also with the theory, advanced by complainant, of a continuing trust recognized by respondent, as to which laches could not begin to run. Ala. C. C. Co. v. Gulf C. Coke Co., 171 Ala. 544,54 So. 685; 21 Corp. Jur. 247, § 244.

It is to be observed also that a complainant's voluntary absence from the state during the period of apparent laches is not of itself sufficient to excuse the delay. 21 Corp. Jur. 240, § 233. See, also, Sayre v. Elyton Land Co., 73 Ala. 85,103; Holt v. Wilson, 75 Ala. 58, 67.

Notwithstanding the amendment to the bill, it is very doubtful if its allegations, as a whole, make of it a bill to reopen and surcharge an account started. Harrison v. Farrington, 36 N.J. Eq. 107.

If complainant wishes to proceed upon that theory, he should abandon the original aspect of his bill; allege an accounting unequivocally; set out its terms and the circumstances under which it was made; show specifically wherein it was erroneous or fraudulent; and acquit himself, by appropriate allegations, of all negligence in discovering such errors and frauds, and thereby of laches in seeking equitable relief.

The defects above noted were pointed out by appropriate grounds of demurrer, and the demurrers were properly sustained to both the original and the amended bills.

Affirmed.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.