Opinion
4 Div. 566.
June 18, 1931. Rehearing Withdrawn August 17, 1931.
Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.
Rushton, Crenshaw Rushton, of Montgomery, and D.C. Halstead, of Headland, for appellant.
A warehouseman is a bailee, and is liable for losses occurring from the want of ordinary care. When demand for the goods stored is made upon the bailee, and he does not account for the failure to make delivery, a prima facie case in an action at law is made out against the warehouseman. Davis v. Hurt, 114 Ala. 146, 21 So. 468; Cleveland Storage Co. v. Guardian Trust Co., 222 Ala. 210, 131 So. 634; 40 Cyc. 462; 27 R. C. L. 1002. A discovery cannot be used as a mere pretext for bringing a common-law action in a court of chancery. Sloss-Sheffield Co. v. Maryland Cas. Co., 167 Ala. 557, 52 So. 751; Metcalf v. Clemmons, 200 Ala. 243, 76 So. 9. There is no such element of trust arising from the relation of bailor and bailee as to bring a controversy between them within the jurisdiction of a court of equity. Young v. Mer. Trust Co. (C. C.) 140 F. 61; Id. (C.C.A.) 145 F. 39. The warrants or receipts, having been issued subsequent to the adoption of the Agricultural Code of 1927, are governed by article 35 thereof, the Uniform Law of Warehouse Receipts. This act has superseded all pre-existing common or statutory law on the subject. Agri. Code 1927, pp. 166, 182; Interstate B. T. Co. v. Brown (C. C. A.) 235 F. 52; Id., 242 U.S. 632, 37 S.Ct. 15, 61 L.Ed. 537; Commercial Bank v. Canal Bank, 239 U.S. 520, 36 S.Ct. 194, 60 L.Ed. 417, Ann. Cas. 1917E, 25.
Steiner, Crum Weil, of Montgomery, and Farmer, Merrill Farmer, of Dothan, for appellee.
A pledgee, such as appellee, may file its bill in equity and foreclose its pledge. Oden-Elliott Lbr. Co. v. Butler Bank, 213 Ala. 84, 104 So. 3; Pom. Eq. (4th Ed.) 1231; Jones v. Dimmick, 178 Ala. 296, 59 So. 623; Elliott v. Kyle, 176 Ala. 167, 57 So. 752. Converse Bridge Co. v. Geneva Co., 168 Ala. 432, 53 So. 196. The allegations of the bill as to discovery are sufficient. Coleman v. Elliott, 147 Ala. 689, 40 So. 666; Averyt Drug Co. v. Ely Drug Co., 194 Ala. 507, 69 So. 931; Townsend v. Miles, 167 Ala. 514, 52 So. 651; Va. Co. v. Hale, 93 Ala. 542, 9 So. 256. The accounts are mutual and complicated, and the bill is good as one for accounting. Hall v. McKeller, 155 Ala. 508, 46 So. 460; Julian v. Woolbert, 202 Ala. 530, 81 So. 32; Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So. 186. Appellant held the lumber in trust for appellee. Teal v. P. G. L. Union, 200 Ala. 23, 75 So. 335; Bromberg v. Hoffman, 207 Ala. 144, 92 So. 114. The Gulf Region Company is bankrupt, and has no interest in the controversy. Balkum v. Breare, 48 Ala. 75.
The opinion of the former appeal is reported in 222 Ala. 210, 131 So. 634.
The assignment of errors challenges the action of the trial court in overruling demurrer to the bill, as last amended, for discovery and enforcement of the pledgee's lien of the Gulf Region Lumber Company, held by complainant by negotiation or transfer.
The amendment to the bill gives it equity. The amendment strikes out paragraph 5 and substitutes in lieu thereof the material averments that "complainant avers as to the lumber in the warehouse, or in the custody or control of the said Cleveland Storage Company, the same is held by it, the said Cleveland Storage Company, in trust for the benefit of complainant, and that said lumber in subject to the receipts or warrants so held by complainant; that complainant has a lien thereon to the extent of its indebtedness against the said Gulf Region Lumber Company, and is entitled to the possession of said lumber, or to have said lien declared and enforced in this Honorable Court, and the said lumber sold by decree of this Court for the satisfaction of said lien; that complainant has made due demand on the said Cleveland Storage Company for the said lumber so in its custody and control, and has offered to pay all lawful charges thereon or therefor, yet the said demand has been refused, except upon a release by complainant in full of all its demands against the said respondent Cleveland Storage Company"; that "complainant has no means of knowing or ascertaining the grade, nor the size, nor quality of the lumber delivered by the Gulf Region Lumber Company to the said Cleveland Storage Company, and not now in its possession or custody, yet represented by said receipts or warrants, nor whether any substitution thereof was in fact made of any of said lumber, nor the amount, nor the grade, nor the size, nor the quality, nor the character of any of such substituted lumber, if any there was, save by and through discovery by the said defendant Cleveland Storage Company, its officers, agents or representatives, in this Honorable Court; that such information rests solely and exclusively with the said defendant Cleveland Storage Company, its officers, agents or representatives, and that they, and each of them, should be required in this Honorable Court to truly discover and set forth all of the facts with reference thereto herein recited, and to account to complainant in this Honorable Court for all such lumber represented by said receipts, or substitutions thereof, which is not in the custody or possession of the said defendant Cleveland Storage Company."
The prayer to the amended bill was that "a lien be declared and established thereon in favor of complainant, and that said lien be enforced by a sale of the said lumber for the satisfaction, as far as may be, of complainant's debt against the said Gulf Region Lumber Company."
The bill as thus amended was that for discovery (Coleman Davis v. Elliott, 147 Ala. 689, 40 So. 666; Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co., 194 Ala. 507, 69 So. 931, and authorities), accounting, as to the mutual and complicated accounts between the parties (Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So. 186; Julian v. Woolbert, 202 Ala. 530, 81 So. 32), and foreclosure of the pledge and trust (Teal v. Pleasant Grove Local Union,c., 200 Ala. 23, 75 So. 335; Bromberg v. Hoffman, 207 Ala. 144, 92 So. 114).
The recent decisions by this court on discovery, accounting, and trust relations are: Farmers' Nat. Bank v. McKinnon, 134 So. 919; First Nat. Bank of La Pine v. Bradley, 134 So. 621; 48th Street Investment Co. v. Fairfield-American Nat. Bank, 134 So. 803.
Post, p. 698.
Ante, p. 22.
Ante, p. 44.
The bankruptcy of the Gulf Region Lumber Company is averred — that it was wholly insolvent and no judgment was prayed against such insolvent bankrupt. Such averred excuse was sufficient for not making the Gulf Region Lumber Company a party. Oden-Elliott Lumber Co. v. Butler County Bank, 213 Ala. 84, 104 So. 3.
The decree of the circuit court is affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.