Smith v. Hancock
| Decision Date | 20 November 1926 |
| Docket Number | 5367. |
| Parties | SMITH et al. v. HANCOCK. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The petition set up a cause of action, and for this reason the court below did not err in overruling the general demurrer to the petition.
Since the passage of the Uniform Procedure Act of 1887 (Civ. Code 1910, § 5406), a petition which sets forth a legal cause of action, though using terms appropriate to an equitable proceeding, is not demurrable on the grounds (a) that it set forth no cause of action; (b) that there is no equity in the petition; and (c) that the plaintiff has an adequate remedy at law.
(a) Where, in a written contract between Smith and Hancock, it was recited that Smith owns a peach orchard, and was desirous of having Hancock furnish the necessary money to cultivate and operate the same, and wherein Hancock agreed to furnish all the money necessary to cultivate the orchard and to gather and market the peach crops grown in said orchard for the period of three years, all moneys advanced by Hancock to be a charge upon said orchard, for which Smith agreed to pay Hancock one-half of the net proceeds of the peaches, the advances made by Hancock to be paid before any of said proceeds were to be divided between the parties, and whatever was left was to be divided equally between the parties, and wherein all advances made by Hancock to Smith for the purposes aforesaid were to be the personal indebtedness of Smith to Hancock, such contract created a partnership between them.
(b) A court of equity has jurisdiction in all cases of an accounting and settlement between partners.
(c) Equity jurisdiction of matters of account extends to mutual accounts growing out of privity of contract, where accounts are complicated, or wherein discovery or writ of ne exeat is prayed and granted, where the account is of a trust fund accounts between partners and tenants in common, or where a multiplicity of suits would render a trial difficult expensive, and unsatisfactory at law.
(d) The petition makes a case for equitable accounting, and for this reason this court has jurisdiction to determine all the assignments of error set out in the bill of exceptions.
The petition is not multifarious.
While the petition does not expressly allege that the plaintiff complied with the obligations assumed by him in his contract with the defendant J. A. Smith, it does in effect so allege.
(a) The petition was not lacking in equity because the plaintiff did not allege that he had paid or offered to pay to S.D. Smith the rents due him by J. A. Smith, under the lease to the latter by the former, which lease had been assigned to the plaintiff, and did not allege that the plaintiff had paid to S.D. Smith the purchase money due him by J. S. Smith under the bond for title from the former to the latter, which bond had been transferred to the plaintiff, the plaintiff in this case not undertaking to assert and enforce against S.D. Smith any rights under said instruments so transferred to him.
(b) Furthermore, as the plaintiff is seeking an accounting of all claims and counterclaims between him and the defendants, and as upon such accounting the plaintiff may not be due the defendants, or either of them, any amount, it was not necessary for him to allege that he had paid the demands which the defendants, or either of them, might hold against him.
In a proceeding to obtain an accounting, the plaintiff is not obliged to set out an itemized statement showing the amounts claimed by him, or to aver how much is due him upon an accounting; but all the petitioner in such a proceeding has to aver are facts sufficient to indicate that something will be found to be due him by the defendant.
The motion to dismiss the petition in this case on the ground that the plaintiff had made a written assignment of all his interest in the peach crop grown in the orchard during the year 1925, to a bank, to secure certain indebtedness of the plaintiff to the bank, was properly overruled, the plaintiff having sued to recover advances of money made by him to one of the defendants for the operation of the latter's peach orchard for the years 1923, 1924, and 1925. A motion to dismiss the whole petition should be overruled, if any part thereof be sustainable.
Additional Syllabus by Editorial Staff.
Petition is not multifarious because all defendants are not interested in all matters in suit; it being sufficient if each has common interest.
Error from Superior Court, Houston County; Malcolm D. Jones, Judge.
Suit by O. C. Hancock against S.D. Smith and another. Judgment for plaintiff, and defendants bring error. Affirmed.-[Statement by Editor].
Petition is not multifarious because defendants are not interested in all matters in suit.
On January 26, 1923, O. C. Hancock and J. A. Smith entered into an agreement in writing, wherein it was recited that Smith was the owner of a certain peach orchard, consisting of 26,000 bearing trees, upon a described tract of land, and that Smith was desirous of having Hancock furnish the money to cultivate, prune, and spray the trees, and to cover all other expenses necessary to the proper raising, fertilizing spraying, and pruning the trees, and to pick, pack, haul, and deliver on board the cars the peaches grown on said trees; whereupon it was agreed that Hancock was to furnish all the necessary money to plow, spray, prune, fertilize, and properly cultivate said trees, and to pick, pack, crate, and deliver on board the cars all of the peaches grown in said orchard. For the furnishing of said money Smith agreed to pay Hancock one-half of the net proceeds arising from the sale of the peaches. All money so advanced for the necessary cultivation of said trees was to be a charge against said orchard, and was to be first repaid before any of the proceeds from said orchard should be divided between the parties. Hancock was to have all the advances that he might make in the operation of said peach orchard first repaid to him, and whatever was left was to be divided equally between the parties. The contract was to cover the peach seasons of 1923, 1924, and 1925. After each peach season the parties were to have a complete settlement of the year's operation. All money advanced by Hancock to Smith, which did not go into the operation of the peach orchard, should be a personal indebtedness of Smith to Hancock. Hancock was to have the right at the expiration of the contract to renew the same on the same terms and conditions for an additional period of three years. Hancock was to have the right to cancel the agreement at the expiration of nine months from its date. All money advanced by Hancock to Smith, for the purpose of operating the peach orchard or otherwise, was to be the personal indebtedness of Smith to Hancock.
Hancock filed his petition against S.D. and J. A. Smith, in which he alleged the foregoing facts, and denominated said contract one of partnership. He made the further allegation that said contract had expired by limitation, but that no final settlement had been made between the partners. S.D. Smith and J. A. Smith were in joint possession of the proceeds of the peaches grown during the season of 1925, amounting to $20,000, or other large sum, the exact amount of which was unknown to him. S.D. and J. A. Smith refused to give him information as to the assets of the partnership, or the amount of the proceeds of said peach crop, or the expenses incurred in gathering and marketing the same. On January 10, 1923, petitioner began to make advances to J. A. Smith, and as security therefor said Smith sold to petitioner certain personal property, a list of which is attached to the petition. At the same time said Smith transferred to petitioner all his rights under a certain lease contract between himself and S.D. Smith. A copy of this contract is attached to the petition. After said transfers were made, petitioner made sundry advances, which were secured by said transfers. Petitioner and J. A. Smith operated the peach orchard during the peach seasons of 1923, 1924, and 1925.
About the close of the peach season of 1924, differences arose between petitioner and J. A. Smith, and petitioner notified him that petitioner would exercise his option, discontinue said partnership, and terminate the same; but said Smith finally prevailed upon him to continue, upon the agreement that S.D. Smith would handle the finances and repay petitioner the advances which he might make for the year 1925 out of the proceeds of the peaches raised for that year. In pursuance of this agreement, S.D. Smith received the proceeds of said peach crop, but, instead of holding the whole amount, placed the proceeds in the bank subject to the joint check of himself and J. A. Smith, contrary to the terms of said agreement. S.D. Smith has paid petitioner $4,206.40 out of the proceeds of the peach crop for the year 1925, and has failed to pay him the following advances made by him under the contract, and which were to be paid out of the first proceeds of peaches sold: Kingman & Everett bill, $136; spraying bill, $325; Dunlap Hardware Company bill, $110; Ware & Sammons bill, $130; and McCook Lumber Company bill, $57. Petitioner is unable to obtain from J. A. Smith or from S.D. Smith any accounting for the operation of said farm for the year 1925. J. A. Smith will not furnish him with an account of the operation of said farm for the years 1923 and 1924. In order that there may be a final settlement of said partnership, it is absolutely necessary that there be a full accounting, so that, after petitioner has been repaid the amount he has advanced, his share of the common assets may be ascertained and paid to him.
J. A Smith is contending that he is...
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