Opinion
6 Div. 960.
January 17, 1924.
Appeal from Circuit Court, Cullman County; James E. Horton, Jr., Judge.
F. E. St. John, of Cullman, for appellants.
The essentials of a bill for accounting are that the remedy at law is inadequate. Phillips v. Birmingham Ind. Co., 161 Ala. 509, 50 So. 77, 135 Am. St. Rep. 156; Friedman v. Frazer, 157 Ala. 191, 47 So. 320; Yellow Pine Export Co. v. Southerland-Innis Co., 141 Ala. 664, 37 So. 922; Lindsey Lbr. Co. v. Mason, 165 Ala. 194, 51 So. 750; Chrichton v. Hayles, 176 Ala. 223, 57 So. 696. Or the accounts complicated. Reilly v. Woolbert, 196 Ala. 191, 72 So. 10; Hulsey v. Walker County, 147 Ala. 501, 40 So. 311; Oden v. Lockwood, 136 Ala. 514, 33 So. 895; Pollak v. Chaflin Co., 138 Ala. 644, 35 So. 645; Terrell v. So. R. R. Co., 164 Ala. 423, 51 So. 254, 20 Ann. Cas. 901. Or a discovery in equity must be needed. Kirkman v. Vanlier, 7 Ala. 217; Avery v. Ware, 58 Ala. 475; Tecumseh Co. v. Camp, 93 Ala. 572, 9 So. 343. Complainant has an adequate remedy at law. Bains v. Price, 207 Ala. 337, 92 So. 447.
Tennis Tidwell, of Albany, and Mitchell Hughston, of Florence, for appellee.
Complainant's remedy at law is inadequate, an accounting is necessary, and demurrer to the bill was properly sustained. Bank of Guntersville v. Crayter, 199 Ala. 599, 75 So. 7, L.R.A. 1917F, 460.
If this were a bill for an accounting from the respondent for the amounts collected by him under the circumstances 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 So. 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 jurisdiction to a court of equity.
However, the accounting here sought is from the respondent bank — neither an agent nor a fiduciary. The bill 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 case for equitable intervention, or negatives the adequacy of the remedy at law by an action of general assumpsit. The equity of the bill is not saved by the allegation that the amount received by 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 for 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 So. 381, 38 Am. St. Rep. 94. Nor, indeed, can the mere fact that a creditor 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 So. 128. The reason for this is that in an action at law any amount may be claimed sufficiently large to cover the maximum amount recoverable, or the complaint may be amended at any stage to fit the evidence; and 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 So. 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 So. 645; Hulsey v. Walker County, 147 Ala. 501, 40 So. 311; Chrichton v. Hayles, 176 Ala. 223, 57 So. 696; Beggs v. Edison Co., 96 Ala. 295, 11 So. 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 So. 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. J., and THOMAS and BOULDIN, JJ., concur.