Alabama Lime & Stone Co. v. Adams

• Decision Date: 26 March 1931
• Docket Number: 6 Div. 668.
• Citation: 222 Ala. 538,133 So. 580
• Parties: ALABAMA LIME & STONE CO. v. ADAMS.
• Court: Alabama Supreme Court

133 So. 580

222 Ala. 538

ALABAMA LIME & STONE CO. v. ADAMS.

6 Div. 668.

Supreme Court of Alabama

March 26, 1931

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill in equity by the Alabama Lime & Stone Company against John H Adams. From a decree sustaining a demurrer to the bill and dismissing it, complainant appeals.

Affirmed.

See also, 218 Ala. 647, 119 So. 853.

Wilkinson & Burton and W. B. Harrison, all of Birmingham, for appellant.

W. A Denson, of Birmingham, for appellee.

SAYRE J.

On the former appeal (221 Ala. 10, 127 So. 544, 547) a number of defects in the present appellant's bill as it then was were pointed out. It was in the bill in its original form averred that Adams, the present appellee, was insolvent. This averment we understand to intend insolvency in its general and popular meaning as denoting that appellee's entire property and assets, if converted into money without unreasonable haste or sacrifice, would be insufficient to pay his debts. 32 Corpus Juris, 805. The precise form of averment was: "That a judgment or decree against said John H Adams for the amount of his indebtedness to it [complainant, appellant] for said $30,621.95 above referred to, would not afford it proper or adequate relief, because of the fact that said amount of money could not be made out of John H. Adams by legal process, and complainant avers the fact to be that the said John H. Adams is not worth said sum of money." And, now that judgment at law has been rendered in favor of this appellee against the appellant, Alabama Lime & Stone Corporation, the purpose of the bill here under consideration is to secure to complainant, appellant, the benefit of an equitable set-off against that judgment, which, by reason of the alleged insolvency of appellee, would not be available in an action at law. Stewart v. Burgin, 219 Ala. 131, 121 So. 420.

On the former appeal a number of defects were pointed out in this appellant's bill as originally framed. Appellant's amendment on return of the cause to the circuit court, sitting in equity, proposed no changes in the text of its bill as originally framed. It adds a number of paragraphs. It is averred in the amended bill that when this appellant purchased the property of the Calera Development Company, as shown in its original bill, set forth in extenso in the report of the former appeal (221 Ala. 10, 127 So. 554), that property was subject to a mortgage held by one Gewin, and that appellant procured from the State Securities Commission of Alabama leave to issue its non-par stock, 11,000 shares, in payment for the property so purchased, but that such commission permitted the purchase and the necessary issue of shares on condition that the property should be free of all incumbrance, but that appellee, then president of appellant corporation, purchased said property for appellant, delivering the 11,000 shares of stock in payment therefor, without requiring the payment of a mortgage thereon for $35,000 and without the consent or approval of this appellant, whereby the money which appellant subsequently was compelled to pay in order to relieve its property of the mortgage was lost to appellant "as the result of his (appellee's) act and mismanagement," and that appellant at no time ratified, adopted, or confirmed the wrongdoing complained of.

In the alternative, appellant's amendment averred that appellant's directors agreed to purchase the property of the Calera Development Company in consideration of the issue to the Calera Company of 11,000 shares of appellant's non-par stock, which had in fact been issued and delivered to Gewin by appellee Adams, and had been so issued and delivered without the delivery to appellant of large parts of the property of the Calera Company, the same being...