Lindsey Lumber Co. v. Mason

• Decision Date: 10 February 1910
• Citation: 51 So. 750,165 Ala. 194
• Parties: LINDSEY LUMBER CO. ET AL. v. MASON ET AL.
• Court: Alabama Supreme Court

51 So. 750

165 Ala. 194

LINDSEY LUMBER CO. ET AL. v. MASON ET AL.

Supreme Court of Alabama

February 10, 1910

Appeal from Chancery Court, Escambia County; L. D. Gardner Chancellor.

Bill by W. E. Mason and another, as assignees of the Canoe Mill Company, against the Lindsey Lumber Company and others. From a judgment overruling demurrers to the bill, respondents appeal. Affirmed.

The bill sets out the contract between the Lindsey Lumber Company and the Canoe Mill Company, and its assignment to the complainants in this cause, alleges the furnishing of orders by the Lindsey Lumber Company to the Canoe Mill Company, and the filling of the orders by the Canoe Mill Company, and on this state of facts alleges the agency of the Lumber Company for the Canoe Mill Company. It further alleges that during the entire operation of the original contract, as well as the expenses, the Lindsey Lumber Company had the entire control and management of the sale of practically the entire output of the Canoe Mill Company and the collection of purchase money, and that the Lindsey Lumber Company would collect the same, and was supposed to deduct their commission and then account for the balance to the Canoe Mill Company. It is then alleged that many car loads of lumber were shipped under this arrangement, and that deals were had aggregating in value many thousands of dollars, and that orators are not able to prove the amount for which these various cars of lumber and other deals were sold, except by the aid of discovery hereinafter sought. It is then alleged on information and belief that in some cases the Lindsey Lumber Company obtained a much larger price for the lumber than they represented to the Canoe Mill Company, and by reason of this said Lindsey Lumber Company is now largely indebted to orator, though from the nature of the case it is impossible for orator to state the exact amount of such indebtedness, and the said Lindsey Lumber Company, being the agent of orator, should have accounted for the full purchase price of the lumber sold by them, after deducting their commission. It is then alleged that requests have several times been made of the Lindsay Lumber Company to render orators an itemized statement of the accounts between themselves and the Canoe Mill Company showing all the dealings, etc.; that said Lindsey Lumber Company refuses to do this, and that orators have no way of arriving at a correct statement of said account except by the aid of discovery, which is hereafter sought; and that upon a final accounting it will appear that orators were entitled to a large sum of money from said Lindsey Lumber Company, and for a decree against said Lindsey Lumber Company for the same. Then follows a list of interrogatories, setting out the things to be answered, together with the items to be inquired about. This bill was verified. The amendment to the bill contained a detailed description of the way in which the Lindsey Lumber Company handled and disposed of the orders sent to the Canoe Mill Company, and charged, as in the original bill, the need of an accounting and discovery. The demurrers waived the question of the equity of the bill, an adequate remedy at law, that no relation is shown between complainants and defendants to entitle complainants to call upon defendants for an accounting, and that the Canoe Company is a necessary party to the bill. There are other demurrers raising the question of want of mutuality of accounts and want of complication of account.

Leigh &amp Leigh, for appellants.

Gessner T. McCorvey, for appellees.

McCLELLAN J.

Necessarily denying the adequateness of the remedy at law, the jurisdiction of equity for an accounting, though on one side only, is undoubted, where, from the facts averred, discovery is sought of matters peculiarly within the knowledge of the respondent, and without which complainant cannot establish the measure of his rights against the respondent. Beggs v. Edison Co., 96 Ala. 295, 11 So. 381, 38 Am. St. Rep. 94; Hall v. McKeller, 155 Ala. 508, 46 So. 460--among others. Aside from the question whether the Canoe Mill Company is an indispensable party to this cause, the chief points to which the solicitors have attended in briefs are practically determinable by a construction of the contract.

The insistence for appellant, Lindsey Lumber Company, is that the relation, created by the contract, between the ...