Andrews v. Frierson

• Decision Date: 13 November 1902
• Parties: ANDREWS v. FRIERSON ET AL.
• Court: Alabama Supreme Court

33 So. 6

134 Ala. 626

ANDREWS v. FRIERSON ET AL.

Supreme Court of Alabama

November 13, 1902

Appeal from chancery court, Chambers county; Richard B. Kelly Chancellor.

Bill by Walter Andrews against T. A. Frierson and another, seeking cancellation of a contract and injunction of actions at law. From a decree dismissing the bill, plaintiff appeals. Reversed.

Oliver & Thigpen, for appellant.

Robinson & Duke, for appellees.

HARALSON J.

1. Gann brought suit in the circuit court of Chambers county, on the 12th December, 1900, against Andrews for $1,965.50, alleged to be one-half of the amount claimed by Frierson as due him by contract with Andrews, for auction fees due by the former to the latter. It is not shown that Andrews and Gann ever had any contract between each other as to these fees; but the bill shows, that after the alleged indebtedness from Andrews to Frierson accrued, the latter, on the 26th November, 1900 gave an order on Andrews for one-half of the commissions due him, Frierson, as per contract between himself and Andrews and $25 in addition, out of his, Frierson's, half of said commissions. But this draft was not an assignment of the fund drawn on Adams until accepted by him, which was never done. To allow such a thing would be "to split up a single cause of action into many actions without the assent of his debtor." Sands v. Matthews, 27 Ala. 399; Mandeville v. Welch, 5 Wheat. 286, 5 L.Ed. 87. On the averments of the bill, therefore, Gann shows no cause of action against Andrews, and the latter, if that were all in the case, would have in a court of law a complete and adequate defense against that action.

In addition to said suit against Andrews, Gann, on the same day, sued out an attachment from said circuit court against Frierson, to recover the same sum he had sued Andrews for, and garnished Andrews as debtor to Frierson. Both of said suits are now pending, as shown, in said circuit court. Frierson, so far as shown, has never sued Andrews to recover his alleged claim against him.

2. The bill alleges specific acts of fraud practiced upon complainant by Gann to induce him to enter into a contract with Frierson, such as that Andrews knew Gann intimately and sustained with him confidential and friendly relations; that complainant, who lived in Chambers county, Ala., had a large amount of real and personal property to be sold at auction,--which brought when sold over $77,000,--and desired to procure the services of a competent and skilled auctioneer to make the sale, and not knowing one in his part of the county, wrote to Gann, who lived in Atlanta, Ga., for his advice and aid in procuring the services of such an auctioneer; that the latter replied tendering his assistance and urging the importance of having a good one; that complainant afterwards, on Gann's invitation, visited Atlanta and called on Gann, at his office, who telephoned to Frierson to come around, which he did; that Frierson stated, that his commissions for selling was always 5 per cent. on real and 10 per cent. on personal property, but that in this case he would make the price 5 per cent. all the way through; that after Frierson departed, an agreement not having been reached, complainant remarked to Gann, that Frierson's price seemed high, and Gann replied, that he had seen other auctioneers and they had said, 5 per cent. was as low as they would make the sale for, and that complainant could not get the work done for less than that; that relying on what Gann told him, complainant made no attempt to see other auctioneers, and entered into the contract with Frierson to give him 5 per cent. on the amount the property sold for; that Gann assured complainant, that Frierson was a good auctioneer, of great...