Bentley v. Barnes

• Decision Date: 18 June 1908
• Citation: 155 Ala. 659,47 So. 159
• Parties: BENTLEY ET AL. v. BARNES.
• Court: Alabama Supreme Court

47 So. 159

155 Ala. 659

BENTLEY ET AL. v. BARNES.

Supreme Court of Alabama

June 18, 1908

Appeal from Chancery Court, Covington County; W. L. Parks Chancellor.

Action by W. R. Barnes against A. J. Bentley and others. From a decree overruling a demurrer to the amended bill, defendants appeal. Reversed and rendered.

C. E Reid, for appellants.

Foster Samford & Prestwood and Henry Opp, for appellee.

SIMPSON J.

The original bill in this case was filed by the appellee, W. R. Barnes, against the appellants, A. J. Bentley, Union Naval Stores Company, the Ashe-Carson Company, and J. W. Wade, trustee. There were demurrers to the original bill, and motion to dismiss for want of equity, which were acted on by the court, and the bill was finally amended. As the present appeal is only from the decree of the court overruling the demurrer to the amended bill, we can consider only said demurrer.

As amended, the bill alleges that said A. J. Bentley, being the owner of certain real estate, executed three mortgages thereon to Benson, Henderson & Co.; that about January 25, 1905, Bentley took H. P. Anderson into partnership with him in the turpentine business on said land, and on the same day said Anderson & Bentley executed a deed of trust on said property to said J. W. Wade, as trustee for said Union Naval Stores Company, to secure a debt due to them; that on June 5, 1905, said Anderson sold his half interest in the partnership to said Union Naval Stores Company; that on the same day said Bentley agreed, in consideration that complainant, Barnes, would take up said mortgages, to convey to him said Bentley's half interest in said partnership; that said mortgages were taken up and assigned to complainant, and Bentley put complainant in possession of the property, and the business was managed for two months, the complainant being general manager and Bentley working with the same for wages; that complainant procured advances from the Union Naval Stores Company, with Bentley's consent, to pay for crude turpentine, etc.; that soon after June 5, 1905, complainant formed a partnership with the Union Naval Stores Company, under the name of W. R. Barnes & Co., and said firm occupied the lands and engaged in the turpentine business, until August 5, 1905, when said Bentley excluded them from possession of the property, and continues to run the business, and continues to sell rosin and turpentine, the amount of which complainant cannot ascertain without discovery; that said Bentley has sold a considerable amount of turpentine and rosin to the Ashe-Carson Company, the amount of which can be ascertained only by discovery; that under said mortgages said turpentine and rosin were pledged for the payment of the mortgage debt; that Bentley is insolvent; that before the filing of the bill the firm of W. R. Barnes & Co. was dissolved, and there has been no accounting of the partnership, and the jurisdiction of this court is necessary to effect a settlement, and complainant has no remedy against Bentley, save specific performance, and offers to cancel the mortgages. The prayers of the bill are: (1) To appoint a receiver of the assets of the firm of W. R. Barnes & Co.; (2) to order Bentley to convey his interest in all of the assets of the firm of W. R. Barnes & Co., and also of his interest in the firm of Bentley & Anderson; (3) for an accounting between the complainant and the Union Naval Stores Company of all the matters and things growing out of the partnership of W. R. Barnes & Co., and that said assets be sold and distributed; (4) to ascertain by reference to the register what assets of the partnership, or to which it is entitled, were received by Ashe-Carson Company, and for a decree for the amount due.

The first assignment of error insisted on by the appellant is that the demurrer should have been sustained to the amended bill, on the ground that said amended bill was a departure from the original bill and set up a new cause of action seeking "new, different, and inconsistent relief from that sought in the original bill." (See first, nineteenth, twentieth, twenty-first, and twenty-second causes of demurrer.) The appellee insists that an amended bill is not subject to demurrer for departure, but that the only proper way in which that can be raised is either by objection to the allowance of the amendment, on motion to strike it, or demurrer to the amendment itself. It is not proper to file a demurrer to an amendment to a bill, but the demurrer should be to the bill as amended. Hodges v. Verner, 100 Ala. 613, 616, 13 So. 679. If the amendment is inconsistent with the original bill, and makes a new case, a demurrer will lie to the amended bill. Larkins et al. v. Biddle et al., 21 Ala. 252, 257; Winter et al. v. Quarles' Adm'rs, 43 Ala. 693, 695; Ward v. Patton, 75 Ala. 207, 208; 1 Beach's Modern Eq. Prac. § 263. While it is true that one of the subjects of prayer in the original bill is that an account be had of the amount due on the mortgages, and an account between complainant and the Union Naval Stores Company, and, if it be necessary, that the mortgaged property be sold, yet, even if that could be considered a prayer for a foreclosure of the mortgage, the general purpose in each is to have a...