The record is voluminous, embracing about 300 pages, and this may account for failure to consider several items of account as invoked by the application for rehearing.
A further consideration of appellant's evidence, the agreement of counsel as to the costs in the cases of Clayton and Hugh Boggs, deceased, "that the cost of the three cases in the circuit court amounts to $128.70," and a further consideration of paragraphs 2 and 3 of the partnership contract, convinces us, and we so hold, that the sum of $128.70 should have been allowed to appellant; that is to say, the sum of $181.35 allowed in the decree, increased by the sum of $15.75, costs of appeal, as allowed in the original opinion, should be further augmented by the sum of $128.70, costs paid in the circuit court, aggregating $325.80, which sum is allowed on this rehearing.
We are not so impressed as to the allowance of the balance of $450, attorneys' fees. The court allowed $100, and we leave the same as fixed by the court. The concluding and statement of intention clause of paragraph 4 of the contract is:
"* * * That the partnership shall refund to F. E. Pitts the sums which he has already expended in connection with his ferry enterprise (which has been agreed upon), and that the parties shall pay all other expenses whether they have accrued or are to accrue in the future and whether they exist by way of court costs, damages, liability on bonds, or otherwise, as long as such liabilities grow out of the acquisition of such ferry franchise or the preparation and operation of such ferry by F. E. Pitts."
It is true the words "attorneys fees" occur in this paragraph, with the words "all court costs" and "liability on bonds"; yet the concluding words are "court costs, damages, liability on bonds, or otherwise * * *" growing "out of the acquisition of such ferry franchise or the preparation and operation of such ferry by F. E. Pitts." These stated items of expense or possible expense are further specifically enumerated as follows:
"Whether they have accrued or are to accrue in the future,and whether they exist by way of court costs, damages, liability on bonds, or otherwise," etc. (Italics supplied.)
We will not disturb the decree of the court as to the attorneys' fees allowed.
The decree of May 8, 1923, dissolving the partnership and ordering a sale of the *Page 649 partnership properties, required the register to state an account between the partners and the partnership, and between the partners themselves, and decreed that the report lie over five days for objections and due exceptions to be taken. The agreement of counsel shows:
"It is further agreed that there was offered in evidence and not included in said tabulation the individual checks of F. E. Pitts to J. S. Walker of $50 November 10, 1922; $50 February 28, 1923; $25 March 7, 1923."
A further examination of the testimony of J. S. Walker does not satisfy us of his repayment. He admits receiving small amounts from the partnership; that the amounts aggregated $125 as supplied by the agreement of counsel. He states that the amounts were "to stand secured" by the typewriter and adding machine. However, when Pitts sought to possess these, Stout got them. The two checks produced by the witness to show payment of the amounts were drawn by Edith Snowden for $150 and $60, dated May 27, 1922. The agreement of counsel shows subsequent dates of the checks in question from Pitts to Walker. Notwithstanding that Walker stated that Pitts had held out (on "5/27/22") the sum of $210 from "some insurance," yet he admitted on cross-examination that he received the specific sums in question in the "fall of 1922 and spring of 1923" — "whenever them checks was give I got the money" — each bearing a subsequent date. This $125 should also be allowed from Walker to Pitts on the individual account, to be deducted from the final balance due Walker rather than from the profits of the partnership in which both parties are interested.
The opinion is modified in the foregoing respects, and the rehearing granted as to the said respective items and denied as to the attorneys' fees.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.