Dargin v. Hewlitt

• Decision Date: 29 April 1897
• Citation: 22 So. 128,115 Ala. 510
• Parties: DARGIN et al. v. HEWLITT.
• Court: Alabama Supreme Court

22 So. 128

115 Ala. 510

DARGIN et al. v. HEWLITT.

Supreme Court of Alabama

April 29, 1897

Appeal from city court of Birmingham; W. W. Wilkerson, Judge.

Bill by Thomas G. Hewlitt against H. Hayden Dargin and others for an accounting and for other relief. From a decree overruling demurrers to the bill, defendants appeal. Reversed.

Each of the respondents demurred to the bill upon the following grounds: "(1) Because the bill shows on its face the complainant has a plain and adequate remedy at law. (2) Because the bill shows on its face that it does not present a case for the interposition of a court of equity. (3) Because the bill shows on its face that complainant has no right to maintain this suit. (4) Because the bill fails to present such a case of entanglement or complication in the account kept by the defendant as would give the court jurisdiction. (5) Because said bill fails to show any mutuality in the account sought to be taken. (6) Because the bill shows on its face that, if complainant is entitled to any moneys alleged to have been appropriated by the defendants, his remedy for recovery thereof is at law and not in equity. (7) Because said bill does not allege insolvency of respondent H. Hayden Dargin. (8) Because said bill fails to show that the Alabama State Fair & Racing Association is a proper party defendant. (9) Because said bill fails to show that the respondent W. W Crawford is a proper party defendant. (10) Because said bill fails to allege facts showing that any discovery is needed in this cause. (11) Because said bill fails to allege in clear and distinct terms any reason for the interposition of a court of equity to establish any claim the complainant may have against respondents. (12) Because said bill does not set forth facts showing that the answer of the defendant is essential for complainant to ascertain the true account between plaintiff and respondent, and that respondents are capable of making the discovery needed. (13) Because said bill shows on its face a misjoinder of parties defendant neither the Alabama State Fair & Racing Association nor W. W Crawford appearing to have any interest in the subject-matter of the suit. (14) Because said bill shows on its face that the proceeds of the privileges named in the bill had not, at the time of the alleged contract of sale, any existence actual or potential, such as to make them a subject of sale. (15) Because said bill shows on its face that whatever contract was made was too vague and indefinite to be enforced. (16) Because said bill does not state whether the contract was oral or in writing, or where entered into, or for what time the contract was to run. (17) Because said bill shows on its face that the alleged contract was a contract for interest in land, and void under the statute of frauds. (18) Because said bill does not state where the contract was made, or the time when complainant was to receive one-third of the privileges named in the bill of complaint. (19) Because the complainant seeks to recover one-third of the gate fees, although it appears from the face of the bill that none of respondents ever obligated themselves to pay complainant any of such gate fees. (20) Because the complainant seeks to recover one-third of gate fees shown by the bill never to have been received. (21) Because the bill joins two separate and distinct causes of action,-one for moneys had and received to and for the use of complainant, and the other for damages for improper management of the races in admitting spectators free of charge. (22) Because, in and by his bill of complaint, the complainant makes the contract therein named or referred to the basis of his suit, and yet does not set out such contract in express terms, so that the court can judge of its legal effect. (23) Because complainant bases his suit upon a contract, and yet does not set out the same or a copy thereof in his bill of complaint. (24) Because the bill shows on its face that the contract sought to be enforced is immoral." There was also a motion made by each of the respondents to dismiss the bill for the want of equity. This motion was overruled.

Head, J., dissenting.

Lane & White, for appellants.

Robert J. Lowe, for appellee.

HEAD J.

The appellee, Hewlitt, having acquired options of purchase of certain real property in Jefferson county, known as the "Fair Grounds," containing about 80 acres, on or about April 1, 1895, contracted with appellant Dargin to sell said land to him at the price of $12,500 in cash, and for the further consideration that he (Hewlitt) should receive one-third of the proceeds of all privileges incident to the holding of fairs, races, or other events of like character upon said grounds. About 75 acres of the land were inclosed by a fence, within which there was a race track and buildings especially adapted to the holding of races and fairs. At the time of sale Hewlitt caused the property to be conveyed to Dargin by deeds of conveyance which were approved and accepted by him, and Dargin paid the stipulated cash consideration, and entered into the possession and enjoyment of the premises. On the 16th of January, 1896, Dargin caused a corporation to be organized by the name of the Alabama State Fair & Racing Association, under the general laws of Alabama, with an authorized capital of $50,000, divided into 500 shares of the par value of $100 each. Dargin subscribed for 498 of said shares, and respondents Crawford and Fox each subscribed for 1 share, and the entire subscription was paid by Dargin, by his conveyance of said property to the corporation, the deed bearing date April 1, 1896. The bill avers that Dargin is the real beneficial owner...