Kenan v. Moon

• Decision Date: 16 January 1930
• Docket Number: 5 Div. 31.
• Citation: 128 So. 379,221 Ala. 286
• Parties: KENAN v. MOON ET AL.
• Court: Alabama Supreme Court

128 So. 379

221 Ala. 286

KENAN v. MOON ET AL.

5 Div. 31.

Supreme Court of Alabama

January 16, 1930

Rehearing Denied April 3, 1930.

Further Rehearing Denied May 22, 1930.

Appeal from Circuit Court, Elmore County; George F. Smoot, Judge.

Bill in equity by Robert L. Kenan against W. P. Moon and others. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed rendered, and remanded.

Complainant taking assignment, before performance, of contract for engineering work for county, could have decree impressing lien on warrant and restraining payment thereof to his assignor, where county accepted benefits of his performance.

The bill of complaint is in part as follows:

"1. That during the year 1919, the defendant Moon and one Pace entered into a certain contract with the County of Elmore in the State of Alabama, whereby for the consideration therein stipulated and provided for said Moon and Pace agreed to do certain engineering work for public road or highway purposes in said County; that soon thereafter the said Pace concluded to and did withdraw from the performance of said contract, and subsequently transferred and assigned all of his interest therein to the said Moon and said Moon entered upon the performance of said contract, but soon abandoned the work which he had personally undertaken, and entered into an agreement and an arrangement with complainant, whereby it was mutually agreed that complainant would perform the services required by said contract, for their joint and mutual use and benefit and that out of the proceeds thereof he should be paid for the necessary and reasonable expenses in the performance of the contract, and the net profit resulting therefrom should be divided equally between the complainant and the said Moon; that complainant did enter upon the performance of and carried out the provision of said contract in accordance with its terms, and in so doing incurred necessary and reasonable expense amounting in the aggregate to the sum of to-wit: Thirty-four Hundred and 92/100 ($3400.92) Dollars.

"After the completion of said work, the County of Elmore declined to pay the consideration provided for by the said contract, and claimed by the said Moon to be due thereunder, and thereupon the said Moon instituted suit in the District Court of the United States for the Northern Division of the Middle District of Alabama against said County of Elmore to recover for the services rendered under the said contract, and on to-wit: the 18th day of May, 1922, recovered a judgment in said District Court for the sum of to-wit: Fifty-nine Hundred Sixty-one and 61/100 ($5961.61) Dollars, which said judgment was affirmed on appeal and became of full force and effect. The said judgment, with the interest thereon, was later on to-wit: the 29th day of January, 1924 paid by the said County, amounting in the aggregate to the sum of $6976.47, such payment being made by the payment of the sum of $4132.92 in cash, and the issuance of a warrant by said County payable to the said Moon in the sum of $2843.55, which said warrant was then and there delivered to said Moon.

"2. That out of the cash so received by the said Moon, he paid to complainant on account of his interest therein the sum of $1507.00, and promised that out of the said warrant he would pay the remainder of his share or interest therein; that though the said warrant has not yet been paid by the said County, the said defendant Moon is now denying and repudiating the claim and interest of complainant and has been endeavoring to sell and dispose of the said warrant, claiming that the same is his property, and that he has the right to do with it as he pleases; that the said Moon possesses no substantial means, so far as complainant is advised, and informed, or has been able to ascertain, out of which his liability to complainant may be enforced, except for the recourse which complainant has as hereinafter recited.

"3. Complainant avers that he has an interest in the warrant so held by the said Moon, or the proceeds to be derived therefrom or to be paid by said County, and an equitable lien thereon for the balance of his said demand; that practically no expenses were incurred in the performance of said contract except those incurred and paid by complainant, and that the difference between the amount of such expenses so incurred and paid, and the amount of said judgment paid by the said defendant County to the said Moon is the net profit arising from said enterprise and in which complainant has one half interest, and complainant is advised, and upon such information avers that he is entitled in this Honorable Court to have a lien upon or his joint interest in said fund established and declared and the same condemned in this Honorable Court to the satisfaction of his said demand, and to require the defendant County of Elmore to pay the same into this Honorable Court, and to have said County restrained and enjoined from paying the same to the said defendant Moon."

The prayer of the bill is that the court "will make and enter a decree declaring and impressing a lien in favor of complainant upon the said warrant, or the proceeds thereof, or upon the debt which the County of Elmore owes as aforesaid, or establishing the interest of complainant therein, and that said warrant, or the proceeds thereof, or the debt be condemned, to the end that complainant may be paid his just demand, and that the County of Elmore, its officers and agents, be required to pay the said debt or demand in this Honorable Court, and enjoined and restrained from paying it to the said Moon, at least to the extent of the interest which complainant has therein, and if complainant is mistaken in the relief herein specifically prayed, that said Moon be enjoined and restrained from selling or otherwise disposing of said warrant, or the proceeds thereof he prays for such other, further and different relief to which he may show himself entitled."

By amendment it is alleged that the claim of Moon has been transferred by assignment or pretended assignment to Dean; that the county treasurer is about to pay the warrant referred to to respondent Dean; that both Moon and Dean are financially irresponsible, and would not be able to respond in damages to complainant should he win in a suit against either of them. It is prayed that said treasurer be restrained from issuing warrant to said Dean.

Holley & Milner, of Wetumpka, and Steiner, Crum & Weil, of Montgomery, for appellant.

Huddleston & Glover, of Wetumpka, for appellees.

FOSTER J.

The complainant, appellant on this appeal, filed a bill in chancery against one W. P. Moon, W. R. Dean, Elmore county, and its treasurer. It alleges the issuance of a warrant by the county on its treasurer for the payment of money. The warrant is in favor of Moon, but complainant alleges an equitable interest in it, either as a lien by contract or that it belongs to a joint enterprise in which they are jointly interested. The bill alleges a transfer of the warrant to Dean, but shows that he is not an innocent purchaser for value; that Moon and Dean are not financially responsible, and, if the warrant is paid to either of them he will sustain a loss of his rights, and that the county treasurer is about to pay the amount of the warrant to Dean, and seeks an injunction against the county and its treasurer and an accounting against Moon.

The record does not show that Moon or Dean has made an appearance or any nature of defense. The county and its treasurer separately appeared and demurred because there is no equity as to them respectively, and because they are improper parties. The court sustained the demurrer of each of them, and complainant has appealed and assigned such decree as error. The sufficiency of the bill is therefore tested only in so far as these parties are concerned.

If the subject-matter is without the jurisdiction of the court of chancery, so that no relief could be granted against Moon and Dean on decree pro confesso, then no relief could, of course, be decreed against these appellees. Relief against them is only incidental and remedial, and dependent upon relief being decreed against the other respondents.

We think that on decree pro confesso the court of chancery has jurisdiction of the subject-matter. The bill avers that complainant has an interest in what may be termed a joint adventure. Anderson v. Blair, 202 Ala. 209, 80 So. 31; Id., 206 Ala. 418, 90 So. 279. Under such circumstances, though a suit at law may afford relief, equity has jurisdiction to decree an accounting. Saunders v. McDonough, 191 Ala. 119, 67 So. 591; Id., 201 Ala. 321, 78 So. 160; Hill v. Hill, 208 Ala. 659, 95 So. 29; Lunsford v. Shannon,

208 Ala. 409, 94 So. 571.

Under those circumstances, it is our judgment that the court of chancery taking jurisdiction, unless in violation of public policy, may and should allow the county and its treasurer to be made parties and grant full and complete relief by restraining the payment of said warrant until the court shall decree the respective...