Francis v. Gilreath Coal & Iron Co.

• Decision Date: 21 December 1912
• Citation: 180 Ala. 338,60 So. 919
• Parties: FRANCIS v. GILREATH COAL & IRON CO.
• Court: Alabama Supreme Court

60 So. 919

180 Ala. 338

FRANCIS v. GILREATH COAL & IRON CO.

Supreme Court of Alabama

December 21, 1912

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Suit by the Gilreath Coal & Iron Company against W. J. Francis, as trustee. From a decree overruling a motion to dissolve a temporary injunction, defendant appeals. Affirmed.

Vassar L. Allen, of Birmingham, for appellant.

Campbell & Johnston, of Birmingham, for appellee.

DE GRAFFENRIED, J.

The appeal in this case is from a decree overruling a motion to dissolve a temporary injunction. The bill is filed by the appellee, and alleges that during the year 1908 complainant purchased from appellant, W. J. Francis, as trustee, 250 shares of the capital stock of the Burnwell Coal Company for $25,000; that, at the time of said purchase said Francis was the president of said company, and that certain assets of said company (denominated "liquid" or "quick" assets) were retained by said "Francis, Trustee," out of which the debts of said Burnwell Coal Company were to be paid; that in the purchase of said stock complainant paid $10,000 in cash and gave two notes for $7,500 each, payable in 6 and 12 months, attaching stock certificates as collateral security; that one of said notes has been paid, and said Francis, as trustee, has advertised the collateral for sale, on account of failure to pay the remaining note; that said Francis, trustee, has paid off all of the debts of said Burnwell Company, and has in his hands a considerable amount of money (approximately $8,500) the proceeds of the said assets left in his hands, and refuses to account for the same; that a discovery is necessary in order to ascertain the exact amount of funds in the hands of said Francis, trustee, as the books and papers of said company were left in his hands; that the complainant is now the owner of all of the shares of stock in said Burnwell Company; that said Burnwell Company has assigned to complainant its claim against said Francis, trustee, for the balance of proceeds of said assets in his hands; that according to the original agreement said Francis, trustee was to account for what remained in his hands of said assets after paying off said debts of said company; that complainant is willing and ready to pay any amount which may be found due on said note, after the same has been credited by the amount in the hands of said Francis, after payment of said debts. It is averred, on information and belief, that said Francis is insolvent, and that while the records of Jefferson county show certain property assessed to him "as trustee," which is shown to be subject to a mortgage, yet complainant does not know for whom he is trustee;...