Boriss Const. Co. v. Deasey

• Decision Date: 26 March 1925
• Docket Number: 6 Div. 296
• Citation: 212 Ala. 528,103 So. 470
• Parties: BORISS CONST. CO. et al. v. DEASEY.
• Court: Alabama Supreme Court

103 So. 470

212 Ala. 528

BORISS CONST. CO. et al. v. DEASEY.

6 Div. 296

Supreme Court of Alabama

March 26, 1925

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

Bill in equity for accounting by E.J. Deasey against Boriss Construction Company and others. From a decree overruling demurrer to the bill, respondents appeal. Affirmed.

Charles W. Greer, of Birmingham, for appellants.

Weatherly Birch, McEwen & Hickman, of Birmingham, for appellee.

GARDNER J.

This appeal is from a decree overruling the demurrers of appellants to appellee's bill. Broadly stated, from the allegations of the bill, it appears that complainant entered into a contract with the Boriss Construction Company to procure engagements in construction work to be performed by said company, and to supervise and direct such work, and to receive by way of compensation for such services 35 per cent of the net profits of each engagement so procured and completed. A number of such building operations are designated, and those that have been fully completed are also named. One of the building operations was that of the Concord schoolhouse, which is 95 per cent. completed, and as to which there is yet a substantial sum due by the county board of education, and out of which a substantial profit has been made.

The company agreed to keep the books of account, showing all matters of expenditure and collections on account of these building operations, and showing all profits derived and to account to complainant therefor. Such books and accounts have been kept, but complainant's demand for a settlement of account has been denied, and the information therein contained is peculiarly within the knowledge of the respondent and its president, Julian I. Boriss, without a disclosure of which complainant will be unable to establish the measure of his rights.

Under these averments in a suit at law, for what an amount would plaintiff sue, and, as asked in Wood v. Hudson, 96 Ala. 469, 11 So. 530, "if he should state an amount at a venture in a declaration, by what testimony would he proceed to establish his claim, unless by that of the respondents themselves?" The bill therefore shows the duty resting upon respondents to render complainant an accounting, and disclose the inadequacy of the remedy at law, occasioned by the necessity of discovery as preliminary to relief. There is equity in the bill. Wood v. Hudson, supra; Va. & Ala., etc., Co. v. Hale, 93 Ala. 542, 9 So. 256; Lindsey v. Mason, 165 Ala. 194, 51 So. 750; Hall v. McKellar, 155 Ala. 508, 46 So. 460; Rasch v. Peters, 201 Ala. 569, 78 So. 913. We are of the opinion the bill sufficiently shows the contract entered into and the building operations procured and supervised.

While recognizing and giving full force to the rule that pleadings are to be construed most strongly against the pleader, this court has frequently stated that nevertheless pleadings are to be given a reasonable common sense construction, as opposed to a strained unnatural and too refined and technical construction. Nor is technical accuracy to all details required. So constructing the bill in this cause, we think it states the essential facts necessary to make out complainant's case, and sufficiently informs respondents of the nature of...