Pollak v. H.B. Claflin Co.

• Citation: 35 So. 645,138 Ala. 644
• Parties: POLLAK v. H. B. CLAFLIN CO.
• Decision Date: 17 December 1903
• Court: Supreme Court of Alabama

35 So. 645

138 Ala. 644

POLLAK v. H. B. CLAFLIN CO.

Supreme Court of Alabama

December 17, 1903

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Bill by Ignatius Pollak against the H. B. Claflin Company. Bill dismissed, and complainant appeals. Affirmed.

Philip H. Stern and G. F. Mertens, for appellant.

D. S Hausman, for appellee.

HARALSON J.

The bill is filed to settle accounts between complainant and defendant, which are alleged to be so complicated and intricate as to require the court of equity to adjust and settle them,--a court of law, as alleged, being incompetent to furnish a complete and adequate remedy therefor.

The respondent's counsel make a statement of the averments of the bill which, so far as we can discover, is fair, and therefore for convenience we adopt it. He says, when stripped of its multifarious allegations, the bill "avers that Pollak & Co. was at one time indebted to the appellee in the sum of about $35,000; that this amount was subsequently reduced to $14,000; that the Pollak Company failed in business and after said failure appellant executed his individual notes to appellee for about $15,000; that appellant has paid about $1,500 on these notes, and appellees have also received from the estate of the Pollak Company about $2,200 which should be allowed as a credit on said note and that there is still in the hands of the trustee of the Pollak Company an undivided dividend which appellee ought to collect and apply on appellant's notes; that the Pollak Company was succeeded by a new corporation known as the Fair of which appellant became a stockholder; that a few days before the Fair was put into involuntary bankruptcy appellant severed his connection with the said the Fair; that the said the Fair was indebted to the appellee in the sum of about $18,000, and was also indebted to appellant; that the said corporation was wholly insolvent; that the appellee, through its agent, procured appellant to bring about a composition; that, to effect this, appellant paid certain petitioning creditors the amount of $8,000; that appellant himself had a claim against the said the Fair for about $42,000; and in order to effect said composition, appellant, at the request of the appellee, withdrew his claim against the estate and, as a consequence, received no dividend from the estate, and thereby lost about $7,000; that the appellant obtained the control of the lease of the storehouse formerly occupied by the Fair; that a new corporation was to be organized and that if appellant would transfer the lease to the new corporation that he would be permitted to subscribe for $10,000 of the stock of the new corporation; that as a further consideration of transferring of the lease to the new corporation, the appellee was to credit on the account of the said the Fair the difference in value between the amount that the assets of the said the Fair sold for and the actual appraised value of the same and after satisfying this account, whatever remained was to be credited or paid to appellant, and that there was an excess of about $13,000, which under the agreement, was to be credited to the appellant." It is also averred, as growing out of the transaction, that respondent owes complainant a large sum of money, to wit, about the sum of $30,000, and that if the accounts between complainant and respondent were properly taken, and the said notes of complainant to respondent were delivered up and canceled, a considerable balance would be due from respondent to complainant, to wit, about the sum of $10,000. Writs of garnishment were issued to a number of persons to require them to answer in what sum or sums they were indebted to respondent. These garnishees were afterwards discharged by the court.

The prayer of the bill, so far as pertained to the necessities of the case was: That respondent be required to make full and true discovery and disclosure of and concerning all and singular the transactions and matters aforesaid, and that an account may be taken and had under the direction of this court of all dealings and transactions between orator and respondent; that in taking such account, respondent may be charged with the accounts hereinbefore...