Durham v. Edwards

38 So. 926, 50 Fla. 495

• Court: Supreme Court of Florida
• Decided: June 5, 1905
• Status: Published

Opinion

Shackleford, C. J.,

(after stating the facts.) In equity, as well as at law, a pleading is to be most strongly, construed against the pleader thereof, and in passing upon a demurrer to a bill every presumption is against the bill. This follows from the established principle of pleading that it is incumbent upon a complainant to allege in his bill every fact, clearly and definitely, that is necessary to entitle him to relief; and if he omits essential facts therefrom, or states such facts therein as show that he is not entitled to relief in a court of equity, he must suffer the consequences of his so doing. Richardson v. Gilbert, 21 Fla. 544, text 547; Parker v. City of Jacksonville, 37 Fla. 342, 20 South. Rep. 538; Herrin v. Brown, 44 Fla. 782, 33 South. Rep. 522; Johnson v. McKinnon, 45 Fla. 388, 34 South. Rep. 272; Stockton v. National Bank of Jacksonville, 45 Fla. 590, 34 South. Rep. 897; Pinney v. Pinney 46 Fla. 559, 35 South. Rep. 95; 16 Cyc. 237. It is also true that when some allegations in a bill show a case entitling a complainant to some relief, but are contradicted by other allegations in the same bill, and it is impossible for the court to determine the true nature of the case sought to be made by the bill, a demurrer thereto should be sustained. Bridger v. Thrasher, 22 Fla. 383; 16 Cyc. 238. If a bill for relief is so vague and indenite that it does not state any case upon which a court of equity will grant relief, it will be demurrable for want of equity. Carter v. Smith, 35 Fla. 169, 17 South. Rep. 411. No relief can be granted where the complainant’s own showing in his bill demonstrates a want of equity in his prayer. Megin v. Filor, 4 Fla. 203, text. 207.

Applying these tests to the bill, we are of the opinion that it signally failed to comply with the requirements above cited. The allegations therein show that the partnership existing, between appellant and appellee had been dissolved, there being an express statement therin as to certain matters having transpired since “the dissolution of the partnership between your orator and the defendant.” It is further shown by the bill that appellee had conveyed to appellant all the partnership property in Clay county, both real and personal, in accordance with the agreement made and entered into between them; the consideration for the conveyance and dissolution being the assumption by appellant of the debts of the partnership, as well as certain individual indebtedness in part of the appellee. No fraud or misrepresentation upon the part of appellee is charged in the bill, and we fail to find any grounds set forth therein which would entitle appellant to an accounting from appellee in a court of equity-Where one partner transfers his entire interest in the partnership concerns to his copartner so as to vest in the latter the partnership assets as his sole property, a dissolution of the partnership results. Schleicher v. Walker, 28 Fla. 680, 10 South. Rep. 33.

We are of the opinion that the demurrer was properly sustained' to the bill, therefore, the'decree appealed from will have to be affirmed, and it is so ordered, at the cost of appellant.

Cockrell and Whitfield, JJ., concur. Taylor, P. J., and Hocker and Parkhill, JJ., concur in the opinion.