Opinion
5 Div. 256.
December 2, 1937.
Appeal from Circuit Court, Randolph County; W. B. Bowling, Judge.
Rutherford Lapsley, of Anniston, and H. T. Burns, of Wedowee, for appellant.
As a basis for recovery at law or in equity the pleading must show whether the contract is in writing, or, if oral, the complaint must set out with certainty and precision a contract mutually binding on the parties, and such statement must clearly show a consideration. Goodwin v. Adler, 220 Ala. 69, 124 So. 108. The contract must be set out in haec verbis or with such particularity as to omit no material feature as binding on all parties. Byars v. James, 208 Ala. 390, 94 So. 536. The consideration must be clearly shown, otherwise the contract is void for lack of mutuality.
D. R. Boyd, of Roanoke, and Denson Denson, of Opelika, for appellee.
Under the nature of the bill, and the facts alleged, it was not necessary to allege whether the contract is oral or written. Dargin v. Hewlitt, 115 Ala. 510, 22 So. 128. It was only required that complainant state essential facts necessary to make out its case and sufficiently inform respondent of the nature of the case he is called upon to defend. Technical accuracy as to all details is not required. Boriss Const. Co. v. Deasey, 212 Ala. 528, 103 So. 570; Dewberry v. Bank of Standing Rock, 227 Ala. 484, 150 So. 463. The particularity of averment in suits at law on contracts is not required in a suit in equity. The bill is sufficient. Handley v. Heflin, 84 Ala. 600, 40 So. 725; Virginia A. Min. Mfg. Co. v. Hale, 93 Ala. 542, 9 So. 256.
The bill in this case seeks a discovery and accounting by a principal against his alleged agent. It alleges an agency agreement by which respondent agreed to sell fertilizers to consumers as agent for complainant, and to make collections for such sales and remit the amounts so collected to complainant. It does not allege whether the contract of agency was in writing or whether there was any consideration to the agent.
It is consistent with the bill to assume that the contract was verbal and without consideration.
The bill then alleges that respondent as such agent sold a large amount of fertilizer, aggregating $3,780.84, and has made collections and some remittances to complainant, leaving a large sum not paid, and whether the agent has collected the balance, and the amount of such balance, and the persons who owe the same, are not known to complainant, and respondent has refused to inform him or let him examine the respondent's books showing such facts; and complainant has no practical means of obtaining such information, except from respondent himself.
It is objected that the bill is without equity. But we think it conforms to the requirements of law as declared by this court. Phillips v. Birmingham Industrial Co., 161 Ala. 509, 50 So. 77, 135 Am.St. Rep. 156; Dorrough v. Mt. Pleasant Fertilizer Co., 210 Ala. 530, 98 So. 735; Hyatt v. International Agri. Corporation, 230 Ala. 153, 160 So. 227.
If respondent collected money as agent for complainant, and refuses to account for it, it is wholly immaterial whether there was a consideration for his services or not, or whether the contract was verbal or in writing.
This is not a suit for damages for the breach of a contract, or for the failure to exercise such diligence or perform the acts stipulated to be done by the contract. If one gratuitously promises to act as agent for another and has undertaken its performance, he is responsible for what he has done or undertook to do, although there was a want of mutuality of contract, and must account to the principal in so far as he has acted under the contract. 2 Corpus Juris Secundum, Agency, 1043; 2 Am.Jur. p. 220, § 275; Meyerson v. New Idea Hosiery Co., 217 Ala. 153, 115 So. 94, 55 A.L.R. 1231; Am.Law Restatement, Agency, §§ 378, 379.
The rules of pleading the terms of such an agency contract, showing whether it is in writing, based upon a consideration, and mutually binding, which have application in a suit at law for its breach, have no field of operation in a suit in equity upon a bill such as is here involved.
If there is any feature of the contract on which respondent may predicate a defense he can set it up in his answer; but the bill need not extend into detail in that respect.
It shows sufficient facts to invoke equitable relief, a discovery, and accounting by an agent who has undertaken to perform the contract of agency.
We think the demurrer was properly overruled.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.