Philippi v. Philippe

The appellant was the plaintiff in the circuit court. The original bill was filed October 20, 1879. It was demurred to, and the demurrer sustained. The plaintiff having obtained leave to amend, filed an amended bill, in which he stated his case substantially as follows:

The plaintiff is the son of Angelo M. Philippi, deceased. Some time previous to the year 1845 the said Angelo M. Philippi and Antonio Philippe, his brother, one of the defendants, were equal partners in carrying on in the city of Mobile, in the state of Alabama, a boarding-house and saloon, in which business they prospered. In 1845 Angelo decided to revisit his native country, the island of Corsica. Before leaving Mobile he placed all his affairs, business, money, and property in the keeping of his brother Antonio to manage for him; and the latter having accepted the trust, Angelo left the United States and went to Corsica. Antonio, after the departure of his brother, continued the partnership business for the joint benefit of both. He managed his brother's affairs and property and the partnership business with such skill and success that in May, 1847, he had in his possession the sum of $10,000 belonging to Angelo, upon which he agreed to pay interest. For the year ending November, 1847, the profits of the joint business were $8,000, and the joint income from their slaves for the same period was $4,500. For a time Antonio kept true accounts of these profits and incomes, fixing Angelo's share therein. He invested these accumulated gains of himself and his brother Angelo in real estate, taking, however, the titles in his own name.

In the year 1848 Antonio held, as the joint property of himself and Angelo, six houses and lots in the city of Mobile, valued at $26,000. Subsequently to 1848 he bought a large amount of real estate, which he paid for out of the profit and incomes derived from the trust funds and from the slaves and business jointly owned by himself and his brother. During their long separation the relations of the brothers continued harmonious, and a correspondence was kept up between them. By letters dated, respectively May 5, 1847, and March 7, 1848, written in the Italian language, addressed by Antonio to Angelo, translations of which, marked Exhibits D and E, are attached to the bill, the former acknowledged the trust. Angelo returned from Europe in December, 1856. Antonio did not deny the admissions made in the letters of May 5, 1847, and March 7, 1848, or repudiate the trusts therein acknowledged, but promised to render a true and just account of the pa tnership, and trust affairs to Angelo, and to make a final settlement of the same; but he delayed doing so, from time to time, and never made said statement of account or final settlement. Subsequently, by papers marked Exhibits F and G,* attached to the bill as parts thereof, Antonio expressly acknowledged the trust. Angelo, being of foreign birth, and imperfectly acquainted with the English language, and being also a man of few associates, and those few foreigners, ignorant, as he himself was, of the English language, never became fully informed of his rights and remedies, under the laws of this country, against his brother Antonio, and was averse to litigating with his brother, and repeatedly declared that the thought of a lawsuit with his brother was repulsive to him, and chose rather to hope that his brother would ultimately fulfill his promise to account to him and render to him what was his due. Upon his return from Europe, in December, 1856, Angelo was possessed of but scanty immediate means, while the defendant Antonio had at his disposal much wealth. Angelo remained in Mobile, after his said return, until his death, which occurred May 1, 1874, and was in a condition of poverty, and at times almost of distress, and died leaving his family in want. The translation of the letter of May 5, 1847, (Exhibit D,) written by Antonio to Angelo, contained the following passage '2. Further, the certificate made by the hand of a notary as (that) I hold 10,000 dollars of thine in my hands, which I pay thee interest.' This is the only part of the letter pertinent to the case. The translation of the letter of March 7, 1848, (Exhibit E,) contains the following passage, which is the only one referring to the present controversy:

'Now let us speak a little of our affairs. I will tell thee that I have arranged the accounts the first of November, on which the profit of the affairs which we hold together are 8,000 dollars; 4,000 dollars I have marked them for thee to thy credit, which I wish that thou make me know what I must do with it,-if thou wishest that I send them to thee, or wishest that I should do business with them for thy account. Since thou hast left I have made purchases; the house in which I am, 13,000 dollars. I have had a very beautiful one built on Dauphin street, cost 7,000 dollars; bought one in the same street, which thou knowest, where Colobo keeps his bar-room, cost 6,000 dollars; thus counts 6 houses which we hold. The negroes give me of interest the sum of 4,500 dollars a year without our trade. Thus, dear brother, thou knowest well what is mine has been and always will be thine, and thou I am persuaded thy sentiments are the same. For this I wish to tell thee thou hast no need that the interest should keep thee melancholy.'

Exhibit F, appended to the bill, is a copy of a petition filed by Antonio, in a suit brought against him in the chancery court of Mobile county by the administrator and heirs of Angelo, to enforce the same trust set up in this case. Antonio, in this petition, which was under oath, after denying that he was indebted to his brother Angelo at the time of his death in any amount whatever, stated that the bill filed against him required him to admit or deny the making of a writing under his hand acknowledging the trust set up in the bill; and as the writing was alleged to have been made more than 30 years before, he could not answer the averment of his having executed a writing of the effect charged without seeing it, and prayed that the plaintiffs in that case might be required to submit the same to his inspection.

Exhibit F, attached to the amended bill, was an affidavit made and filed in the present cause by Antonio, in which he stated that it was wholly untrue that he was in any manner indebted to the heirs of Angelo, as charged in the bill; that Angelo returned from Europe to Mobile in the year 1853, a fact not mentioned in the bill, and that while so in Mobile, and before he left again, a full settlement was m de between him and the affiant of all matters of account, and that in such settlement a balance of over $900 was found to be due the affiant from Angelo, which he had never paid. The affidavit further stated that about the year 1872 Angelo had a claim upon an insurance company for property destroyed by fire, which became a subject of litigation; that, being destitute of means, Angelo applied to affiant to lend him money to support his family until he could recover the insurance money, and affiant lent him $800 on his agreement to repay the loan out of the insurance money when collected; that Angelo compromised his demand against the insurance company for $3,000, and his creditors set up their claims against the fund in the chancery court; and that in that proceeding Angelo filed the following affidavit: 'That he is entirely destitute of property, except the money and proceeds coming to him from the said policy of insurance; that it constituted all the property he had in the world, except a few articles of household furniture and wearing apparel for his family, which he is advised by law is exempt from execution and levy. And this affiant,' Angelo, 'now shows to the court that he is advised by counsel that he is entitled to one thousand dollars as exempt from attachment, levy, or garnishment, and he claims this amount shall be left to him unaffected by the creditors or any of their proceedings in this cause,' etc.

The affidavit of Antonio (Exhibit F) further stated that he received out of said insurance money, on his claim for the money lent to Angelo, the sum of $329.27, and the other creditors got a like pro rata share out of the same fund. Antonio Philippe, Angela F. Philippi, individually and as administratrix of the estate of Angelo M. Philippi, and the brothers and sisters of the plaintiff, children and heirs of Angelo M. Phillippi, were made defendants to the bill. The prayer was for a settlement of the partnership, and an account of its property, profits, and gains, and for a settlement of the trust, and that Antonio Philippe might be decreed to pay over to Angela F. Philippi, the administratrix, the one-half of all the gains and profits of the partnership, with interest, and to deliver to the plaintiff and to the defendants, heirs at law of Angelo M. Philippi, all the real estate purchased by him in his own name, with the trust funds belonging to Angelo, or with his share of the profits of the partnership, and for a partition between Antonio Philippe and the heirs of Angelo M. Philippi of all lands held by the former in his own name, purchased with the joint funds of himself and Angelo M. Philippi, and for other relief. The defendant Antonio Philippe demurred to the bill, and for grounds of demurrer, besides others, alleged that the cause of action set out in the bill was stale and barred by the statute of limitations of Alabama, and that the plaintiff, being merely one of the heirs at law of said Angelo M. Philippi, was not entitled to the relief prayed in the bill. The circuit court sustained the demurrer and dismissed the bill, and the plaintiff appealed.

Frederick G. Bromberg and L. R. Smith, for appellant.

John A. Campbell, for appellees.

WOODS, J.