Dorrough v. Mt. Pleasant Fertilizer Co.

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 960.
• Citation: 98 So. 735,210 Ala. 530
• Parties: DORROUGH ET AL. v. MT. PLEASANT FERTILIZER CO.
• Court: Alabama Supreme Court

98 So. 735

210 Ala. 530

DORROUGH ET AL. v. MT. PLEASANT FERTILIZER CO.

6 Div. 960.

Supreme Court of Alabama

January 17, 1924

Appeal from Circuit Court, Cullman County; James E. Horton, Jr. Judge.

Suit by the Mt. Pleasant Fertilizer Company against C. W. Dorrough and others. From a decree overruling demurrer to the bill respondents appeal. Reversed, rendered, and remanded.

F. E St. John, of Cullman, for appellants.

Tennis Tidwell, of Albany, and Mitchell & Hughston, of Florence, for appellee.

SOMERVILLE J.

If this were a bill for an accounting from the respondent for the amounts collected by him under the circumstances shown by the bill-the amount of the collections being unknown to complainant and lying peculiarly within the knowledge of Dorrough-it would no doubt present a case of equitable cognizance. Phillips v. Birmingham Ind. Co., 161 Ala. 509, 50 So. 77, 135 Am. St. Rep. 156; Halsted v. Rabb, 8 Port. 63. But, as declared in the Phillips Case, the bare relation of principal and agent would not give jurisdiction to a court of equity.

However, the accounting here sought is from the respondent bank-neither an agent nor a fiduciary. The bill is merely a suit for the collection of a sum of money received by the bank from complainant's agent, which was in law as well as in equity the property of complainant, and which the bank unlawfully appropriated to its own use, or unlawfully withholds.

There is no allegation in the bill which makes a case for equitable intervention, or negatives the adequacy of the remedy at law by an action of general assumpsit. The equity of the bill is not saved by the allegation that the amount received by the bank is equal to, or in excess of, $2,409.07, and the amount in excess of that sum is unknown to complainant.

This does not show any necessity for discovery, nor is any discovery sought-omissions fatal to the equity of the bill as a bill for discovery. Beggs v. Edison, etc., Co., 96 Ala. 295, 11 So. 381, 38 Am. St. Rep. 94. Nor, indeed, can the mere fact that a creditor does not know the actual amount that is due him in a case like this supply the necessary basis for relief by discovery. Dargin v. Hewlitt, 115 Ala. 510, 516, 22 So. 128. The reason for this is that in an action at law any amount may be claimed sufficiently large to cover the maximum amount recoverable, or the complaint may be amended at any stage to fit the evidence; and the amount here recoverable, if any, is a matter merely of proof without any complication or difficulty whatever. Terrell v. So. Ry. Co., 164 Ala. 423, 441, 51 So. 254, 20 Ann. Cas. 901.

The principles upon which the equity jurisdiction for accounting is grounded have been often declared, and need not be restated. Pollak v. Claflin, ...