Julian v. Woolbert

• Decision Date: 16 January 1919
• Docket Number: 6 Div. 789-790
• Citation: 81 So. 32,202 Ala. 530
• Parties: JULIAN v. WOOLBERT.
• Court: Alabama Supreme Court

81 So. 32

202 Ala. 530

JULIAN v. WOOLBERT.

6 Div. 789-790

Supreme Court of Alabama

January 16, 1919

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Suit by S.A. Woolbert against L.R. Julian, administrator de bonis non of the estate of Andrew J. Reilly, deceased. Decree for complainant and respondent appeals. Reversed and remanded.

Sterling A. Wood, of Birmingham, and G.W. Darden, of Oneonto, for appellant.

M.L Ward and Smith & McCary, all of Birmingham, for appellee.

THOMAS J.

The amended bill was for accounting between debtor and creditor.

On the former appeal--if we look at that record as we may do ( N.C. & St. L. Ry. v. Crosby, 194 Ala. 338, 350, 70 So. 7)--the original bill was by S.A. Woolbert against Andrew J. Reilly and others, for an accounting and to declare an interest in the partnership lands. Reilly v Woolbert, 196 Ala. 191, 72 So. 10. It was held that on the facts averred a partnership was created, and plaintiff was entitled to an accounting and settlement of the partnership business as an independent equity; that the phase of the bill and alternative prayer for an accounting between the parties as creditor and debtor was insufficient in not showing mutual accounts. It was further decided that the verbal agreement for the purchase of an interest in the partnership, consisting partially of lands, was violative of the statute of frauds; and the opinion concluded with the statement that "with a proper amendment showing facts which would render an accounting, as between debtor and creditor," the bill may be maintained. Reilly v Woolbert, supra, 196 Ala. 194, 72 So. 11.

This record does not contain the original bill; only the last amendment, in the "cause styled S.A. Woolbert v. Fairchilds Coal & Coke Company, A.J. Reilly, Mrs. A.J. Reilly, and L.R. Julian, as the administrator de bonis non of the estate of A.J. Reilly, Deceased," filed May 21, 1917, rewriting the bill. Defendant L.R. Julian, as administrator, demurred to the bill as amended, pleaded thereto and answered.

Trying to meet the adverse ruling contained in the decision on first appeal and its suggestion as to an accounting between debtor and creditor, it was averred that Mr. Woolbert began work for Mr. Reilly, who was doing business in the name of Fairchilds Coal Company, on November 8, 1904, under a contract to mine or have mined coal at $1 per ton placed on board the cars, and worked under said contract to April, 1905, at which time there was due Woolbert $2,419.76, "under said contract, under an open, running account"; that at that time Reilly made another contract with him, "by which it was mutually agreed that complainant (Woolbert) should have a one-tenth interest in the business of said company for every $3,000 paid therein, or put into said business by complainant, and such indebtedness that was then due complainant should be considered as a part of the purchase money of said interest so purchased, and that complainant was to be superintendent of said mining business, and to receive $80 per month as compensation for his services until the monthly output of coal from said mine should exceed 100 tons per day, at which time his salary would be increased to $100 per month during such time as the output of said mine exceeded 100 tons per day; that under said contract the complainant was to enter upon the discharge of his duties as such superintendent, and to receive compensation for his services as such superintendent, on the 1st day of May, 1905, and from month to month thereafter."

It is further averred that Woolbert entered upon the discharge of his duties as such superintendent on May 1, 1905, and that the monthly output of coal from said mine exceeded 100 tons per day by the 1st day of June, 1905, and thereafter the monthly output each day exceeded 100 tons per day, except a few months during the year 1907, until the year 1912, when said Reilly excluded Woolbert from the management or superintendency of the business; that from May, 1905, until February, 1912, Woolbert, as superintendent, handled large sums of money belonging to A.J. Reilly in meeting pay rolls and discharging other liabilities and expenses of said mining business; that he was charged by said Reilly "with said sums so received by him for such purpose, and given credits for payments made by complainant (Woolbert) in satisfying said pay rolls"; that from the time complainant commenced work for A.J. Reilly, his account against Reilly "was an open, running account, and was made in contemplation of future dealings of the same nature, between the parties for services to be rendered by complainant for said A.J. Reilly, being a period largely over seven years, and during the whole of said time said A.J. Reilly *** sold to complainant merchandise out of the commissary run by him, and charged said sales to complainant, and said sales being made daily during each month during said time, and constituted an open, running, and continuous account by said A.J. Reilly *** against complainant, and that said respective accounts were mutual, and that there has never been any settlement of such transactions between complainant and said A.J. Reilly; *** the same has been kept open, and the amount thereof undetermined between the parties during the whole of said time"; that during said transactions Reilly became indebted to Woolbert in the sum of $7,000 over and above his indebtedness to Reilly; that he demanded an accounting, but never received the same; and that the account between the said A.J. Reilly and Woolbert consisted of mutual claims of each against the other, and of numerous transactions each month, and were in contemplation of future dealings of a similar nature with one another.

For convenience, we will dispose of the material questions presented in the order urged by appellant's counsel.

The essentials of a bill for accounting are stated (2 Mayf.Dig. 19) as follows: (1) The remedy at law must be inadequate ( Phillipps v. Birmingham Industrial Co., 161 Ala. 509, 514, 50 So. 77, 135 Am.St.Rep. 156; Friedman v. Fraser, 157 Ala. 191, 47 So. 320; Yellow Pine Export Co. v. Sutherland-Innis Co., 141 Ala. 664, 37 So. 922; Lindsey Lumber Co. v. Mason, 165 Ala. 194, 51 So. 750; Chrichton v. Hayles, 176 Ala. 223, 57 So. 696; Compton v. Gilder, 176 Ala. 309, 58 So. 271; Lee v. Houston, 197 Ala. 652, 73 So. 327; Compton v. Collins, 190 Ala. 499, 67 So. 395; Metcalf v. Clemmons-Powers & Co., 76 So. 9); (2) or the accounts must be mutual (Lee v. Houston, supra; Reilly v. Woolbert, 196 Ala. 191, 72 So. 10, 11; Phalin v. Dearman, 181 Ala. 320, 61 So. 941; Chrichton v. Hayles, supra; Hulsey v. Walker County, 147 Ala. 501, 40 So. 311; Crothers v. Lee, 29 Ala. 337; Dickinson v. Lewis, 34 Ala. 638; Avery v. Ware, 58 Ala. 475; Tecumseh Iron Co. v. Camp, 93 Ala. 572, 9 So. 343; Attalla Min. & Mfg. Co. v. Winchester, 102 Ala. 184, 192, 14 So. 565; Beggs v. Edison Co., 96 Ala. 295, 11 So. 381, 38 Am.St.Rep. 94; Compton v. Gilder, supra; 2 Story, Eq.Jur. [ 14th Ed.] §§ 598, 602-616); (3) or must be so complicated as to require consideration by a chancery court (Phalin v. Dearman, supra; Hulsey v. Walker Co., supra; Lee v. Houston, supra; Tecumseh Iron Co. v. Camp, supra; Kirkman v. Vanlier, 7 Ala. 217; Avery v. Ware, supra; Knotts v. Tarver, 8 Ala. 743; Attalla Min. & Mfg. Co. v. Winchester, supra; Crothers v. Lee, supra; Beggs v. Edison Co., supra; Hall v. McKeller, 155 Ala. 508, 46 So. 460; Oden v. Lockwood, 136 Ala. 514, 33 So. 895; Pollak v. Chaflin Co., 138 Ala. 644, 35 So. 645; Terrell v. Southern Ry. Co., 164 Ala. 423, 51 So. 254, 20 Ann.Cas. 901; Dargin v. Hewlitt, 115 Ala. 510, 22 So. 128; Chrichton v. Hayles, supra; Compton v. Gilder, supra; Reilly v. Woolbert, supra; 2 Story, Eq.Jur. [ 14th Ed.] § 600; Darthez v. Clemens, 6 Beavan, 165); (4) or a discovery in equity must be needed (Chrichton v. Hayles, supra; Kirkman v. Vanlier, supra; Knotts v. Tarver, supra; Avery v. Ware, supra; Tecumseh Iron Co. v. Camp, supra; Beggs v. Edison Co., supra; Hall v. McKeller, supra; Halsted v. Rabb, 8 Port. 63; Pollak v. Chaflin, supra; Terrell v. Southern Ry. Co., supra; Metcalf v. Clemmons-Powers & Co., supra; Cullman Prop. Co. v. Hitt Lumber Co., 77 So. 574); (5) or the fiduciary relation must exist between parties (Hall v. McKeller, supra; Hulsey v. Walker Co., supra; Avery v. Ware, supra; Tecumseh Iron Co. v. Camp, supra; Beggs v. Edison Co., supra; Fowle v. Lawrason, 5 Pet. 495, 8 L.Ed. 204; 2 Story, Eq.Jur. [ 14th Ed.] § 622; Pollak v. Chaflin Co., supra; Phillips v. Birmingham Industrial Co., supra; Enslen v. Allen, 160 Ala. 529, 49 So. 430); (6) or the defendant must be guilty of fraud or such wrong dealing as authorizes a court of equity to take cognizance (Knotts v. Tarver, supra; 2 Story, Eq.Jur. [ 14th Ed.] § 624). "An accounting is always ordered in a court of equity, where it is an incident to some other relief; but, where an accounting is the only ground of equitable intervention, there should be some averment of facts to show that a complete remedy cannot be had in a court of law, or some fact peculiar to a court of equity." Tecumseh Iron Co. v. Camp, supra; 2 Story, Eq.Jur. (14th Ed.) § 599.

We have noted, among other things, the averment in the amended bill that Woolbert was to receive $80 as a monthly salary during the time the output of the mine was less than 100 tons per day, and $100 as a monthly salary for such time as the output was in excess of 100 tons; that this agreement was of force from 1905 to 1912. In addition, during such time, there was a running and continuous account of Woolbert for purchases made by himself and family in the commissary and for the moneys intrusted to him as superintendent by Reilly with which to make the pay rolls at the mine,...