Opinion
6 Div. 414.
May 19, 1921.
Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.
Denson Ivey, of Birmingham, for appellant.
A partnership is never created by implication or operation of law. 180 Ala. 3, 60 So. 63. The bill does not disclose a partnership inter se. 20 R. C. L. 830. The contract not being in writing and being for more than the year is within the statute of frauds. 20 R. C. L. 812; 116 N.Y. 87, 22 N.E. 280, 5 L.R.A. 623. The intention of the parties is controlling. 75 Ala. 432; 147 Ala. 512, 40 So. 319; 180 Ala. 3, 60 So. 63.
Ellis Matthews, of Birmingham, for appellee.
No brief reached the Reporter.
Bill to dissolve a partnership, for an accounting of partnership affairs, division of partnership assets, and the appointment of a receiver to take charge of the affairs of the partnership, filed by the appellee against the appellant. The respondent's demurrer to the bill being overruled, this appeal results. According to the authority of Glover v. Hembree, 82 Ala. 324, 8 So. 251, Causler v. Wharton, 62 Ala. 358, Tutwiler v. Dugger, 127 Ala. 191, 28 So. 677, and Russell v. Hayden, 201 Ala. 517, 78 So. 871, the bill is not subject to the demurrer. Since the partnership was organized, as averred, "for the purpose of marketing, preparing, and selling a drug, toilet preparation, or solution, and for the operation of a hair dressing parlor or emporium" — a trading concern — no writing was necessary to validly effect its creation. Russell v. Hayden, supra. The bill sufficiently avers the creation of the relation in 1913, the character of the enterprise to be promoted, the equal sharing in losses and profits by the complainant and respondent, the only members of the partnership, the conduct of the business up to a comparatively recent date, viz. July 1, 1920, and the presence of partnership property and funds subject, after payment of debts, to distribution on the dissolution prayed. It is not essential to the perfection of this character of bill, on the authorities before cited, to aver specifically what contribution the complainant made originally, in order to constitute the partnership adequately described.
The decree overruling the demurrer is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.