Dorrough v. Mt. Pleasant Fertilizer Co.

98 So. 735, 210 Ala. 530, 1924 Ala. LEXIS 6

• Court: Supreme Court of Alabama
• Decided: January 17, 1924
• Docket: 6 Div. 960.
• Status: Published

Opinion

SOMERVILLE, J.

If this were a bill for an accounting from the respondent for the amounts collected by him under the eix-eumstances shown by the .bill — the amount of the collections being unknown to complainant and lying peculiarly within the knowledge of Dorrough — it would no doubt present a case of equitable cognizance. Phillips v. Birmingham Ind. Co., 161 Ala. 509, 50 South. 77, 135 Am. St. Rep. 156; Halsted v. Rabb, 8 Port. 63. But, as declared in the Phillips Case, the bare relation of principal and agent would not give jxirisdiction to a court of equity.

However, the accounting here sought is from the respondent bank — neither an agent nor a fiduciary. The hill is merely a suit for the collection of a sum of money received by the bank from complainant’s agent, which was in law as well as in equity the property of complainant, and which the bank unlawfully appropriated to its own use, or unlawfully withholds.

There is no allegation in the bill which makes a ease for equitable intervention, or negatives the adequacy of the remedy at law by an action of general assumpsit. The eqxxity of the bill is not saved by the allegation that the amount received hy the bank is equal to, or in excess of, $2,409.07, and the amount in excess of that sum is unknown to complainant.

This does not show any necessity fox-discovery, nor is any discovery sought — omissions fatal to the equity of the bill as a bill for discovery. Beggs v. Edison, etc., Co., 96 Ala. 295, 11 South. 381, 38 Am. St. Rep. 94. Nor, indeed, can the mere fact that a credi tor does not know the actual amount that is due him in a case like this supply the necessary basis for relief by discovery. Dargin v. Hewlitt, 115 Ala. 510, 516, 22 South. 128. The reason for this is that in an action at law any amount may fee claimed sufficiently large to cover the maximum amount recoverable, or the complaint may be amended at any stage to fit the evidenceand the amount here recoverable, if any, is a matter merely of proof without any complication or difficulty whatever. Terrell v. So. Ry. Co., 164 Ala. 423, 441, 51 South. 254, 20 Ann. Cas. 901.

The principles upon which the equity jurisdiction for accounting is grounded have been often declared, and need not be restated. Pollak v. Claflin, 138 Ala. 644, 35 South. 645; Hulsey v. Walker County, 147 Ala. 501, 40 South. 311; Chrichton v. Hayles, 176 Ala. 223, 57 South. 696; Beggs v. Edison Co., 96 Ala. 295, 11 South. 381, 38 Am. St. Rep. 94.

On the showings of the bill we think the complainant has an adequate remedy at law, and that the bill is subject to the demurrer for want of equity.

Appellee relies on the case of Bank of Guntersville v. Crayter, 199 Ala. 599, 75 South. 7, L. R. A. 1917F, 460. The report of that case does not show what were the allegations and prayer of the bill, though it appears that the complainant’s claim against the respondent bank grew out of transactions substantially like those here presented. But no question was raised as to the equity of the bill; the review on appeal being limited to the correctness of the trial court’s decree on the facts, under the legal principles applicable. That case is therefore of no value as an authority here.

We hold that the decree of the circuit court overruling the demurrer was erroneous, and must be reversed; and a decree will be here rendered sustaining the demurrer to the bill for want of equity.

Reversed, rendered, and remanded.

ANDERSON, C. X, and THOMAS and BOULDIN, JX, concur.