Opinion
8 Div. 355.
October 16, 1947.
Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.
Bradshaw Barnett, of Florence, for appellant.
Equity takes jurisdiction of accounting on legal demands where each of the parties has received and paid on account of the other; when the accounts are all on one side but there are circumstances of great complication or difficulties in the way of adequate relief at law; or where a fiduciary relation exists between the parties and a duty rests upon defendant to render an account. Marx v. Marx, 226 Ala. 684, 148 So. 418. Where discovery is sought, complainant's right thereto does not extend to all facts which may be material to the issue, but is confined to facts which are material to his own title or cause of action; it is not permitted to pry into respondent's case and find out evidence by which that case will be supported. It must appear that discovery is indispensable to the ends of justice, and facts sought cannot be otherwise presented. Mobile v. McCown Oil Co., 226 Ala. 688, 148 So. 402; Merrill v. Ritch, 235 Ala. 155, 177 So. 886. Joint tenants or tenants in common or tenants in coparcenary may maintain an action at law against a cotenant or coparcener for receiving more than his lawful proportion. Code 1940, Tit. 7, § 101; Howton v. Mathias, 197 Ala. 457, 73 So. 92.
F. S. Parnell and Orlan B. Hill, both of Florence, for appellee.
A court of equity will take jurisdiction of a bill for accounting when the remedy at law is inadequate; or when the accounts are mutual; or when they are so complicated as to require consideration by court of equity; or a discovery in equity is needed; or a fiduciary relation exists between the parties; or respondent is guilty of fraud or such wrong dealing as requires equitable cognizance. Tolleson v. Henson, 207 Ala. 529, 93 So. 458; Julian v. Woolbert, 202 Ala. 530, 81 So. 32. Complainant is entitled to discovery when he shows his right to relief, a cause of action, a legal right, and avers facts to entitle him to discovery in order to maintain suit in equity for production of testimony and documents to establish his cause of action. Erswell v. Ford, 205 Ala. 494, 88 So. 429; McMullen Lbr. Co. v. Strother, 8 Cir., 136 F. 295. The allegations of the bill show a partnership arrangement between the parties concerning the cattle; and the relation shown entitles complainant to an accounting of the business. Reilly v. Woolbert, 196 Ala. 191, 72 So. 1011. The bill clearly shows a case for equitable accounting. First Nat. Bank v. Lowery, 234 Ala. 56, 173 So. 382, 385; Phalin v. Dearman, 181 Ala. 320, 61 So. 941; Acuff v. Rice, 224 Ala. 54, 139 So. 91, 92; Brasher v. First Nat. Bank, 232 Ala. 340, 168 So. 42, 46; Hyatt v. Int. Agri. Corp., 230 Ala. 153, 160 So. 227; Marx v. Marx, 226 Ala. 684, 148 So. 418; Crichton v. Hayles, 176 Ala. 223, 57 So. 696.
This is an appeal by respondent from a decree overruling demurrer to the bill, and separately to its several aspects specified in the demurrer.
There are three assignments of error: (1) in so far as the decree overrules the demurrer to the bill as amended as a whole; (2) in so far as the demurrer is addressed to that aspect of the bill as amended which seeks an accounting in paragraph A; and (3) in so far as it is addressed to that aspect set out in paragraph B in respect to the cattle transaction.
If either aspect of the bill is free from any ground of demurrer addressed to the bill as a whole, the demurrer to the bill as a whole was properly overruled.
In respect to that aspect of the bill set up in paragraph A, which seeks an accounting, we find the principles well settled in Alabama. Without reference to a discovery, or other relief peculiar to equity, that court will not sustain a bill for accounting unless there are mutual accounts between them; or, if not that, they are so complicated and difficult to adjust that relief at law is not adequate; or fiduciary relations exist between the parties. Marx v. Marx, 226 Ala. 684, 148 So. 418; Comer v. Birmingham News Co., 218 Ala. 360, 118 So. 806; Dewberry v. Bank of Standing Rock, 227 Ala. 484, 150 So. 463; Rochell v. Oates, 241 Ala. 372, 2 So.2d 749; Buck Creek Cotton Mills v. Stokely, 236 Ala. 146, 181 So. 100; City of Mobile v. McCown Oil Co., 226 Ala. 688, 148 So. 402.
Mutuality is where each of the parties has an account against the other, Rochell v. Oates, supra; Marx v. Marx, supra, as where each party has given credit to the other on the faith of indebtedness to him, 1 Corpus Juris Secundum, Accounting, § 18, p. 651; or each party has a demand or right of action against the other. It is not mutual where it consists of items on one side and payments merely on the other. 1 Corpus Juris Secundum, Accounting § 18, p. 654. And it is not "complicated" merely because it involves a large number of items. Meyrovitz. v. Watford, 235 Ala. 163, 177 So. 887; Gayle v. Pennington, 185 Ala. 53, 64 So. 572.
It is quite apparent that in paragraph A of the amended bill, mutual accounts are alleged, as defined supra. It sets up a claim by complainant for work and labor done under contract which has not been paid for; and an account for corn and hay which he furnished respondent at his request to feed his livestock, for which he was to be paid but which has not been paid; and a claim that respondent has sold the cotton grown by complainant and his tenant, and owes complainant for its value; and, on the other hand, that respondent has a claim against complainant for rent and advances made by respondent to him to make and gather the crop. It also shows that complainant did not keep books of such transactions, but that respondent did so; that complainant does not know the details or items involved but they are known by respondent who has refused to furnish complainant with a statement of them, and he has no way of determining the amount except by an accounting in equity.
It is our view that the demurrer was properly overruled in so far as it is addressed to that aspect of the bill which seeks an accounting set up in paragraph A.
It is also specially directed to paragraph B of the bill as amended.
That aspect of the bill sets up facts by which, as to certain cattle named in it, the relation of a joint adventure was created. Saunders v. McDonough, 191 Ala. 119, 67 So. 591; Pfingstl v. Solomon, 240 Ala. 58, 197 So. 12; Elledge v. Hotchkiss, 222 Ala. 129, 130 So. 893. But the same remedy exists in equity for an accounting as where there is a partnership. Hill v. Hill, 208 Ala. 659, 95 So. 29; Saunders v. McDonough, 191 Ala. 119, 67 So. 591; Id., 201 Ala. 321, 78 So. 160; Lunsford v. Shannon, 208 Ala. 409, 94 So. 571; Zingelmann v. Turner, 235 Ala. 102, 177 So. 627; Kornman v. Raskin, 237 Ala. 490, 187 So. 709. That aspect of the bill invokes an equitable remedy by one joint adventurer against the other.
It was also a proper matter to enter into the computation necessary for the accounting sought in paragraph A. And it tended to show that there was a mutuality of accounts and claims between them.
We do not think there was error in the decree on account of any contention here made.
Affirmed.
GARDNER, C. J., and LAWSON and STAKELY, JJ., concur.