Wright v. Wright

• Decision Date: 23 January 1913
• Parties: WRIGHT v. WRIGHT.
• Court: Alabama Supreme Court

60 So. 931

180 Ala. 343

WRIGHT v. WRIGHT.

Supreme Court of Alabama

January 23, 1913

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

Action by J. W. Wright, Jr., against E. W. Wright. From a judgment for plaintiff, defendant appeals. Affirmed.

W. K Terry and W. T. Stewart, both of Birmingham, for appellant.

Rabb &amp Page, of Evergreen, for appellee.

DE GRAFFENRIED, J.

The appellee made a contract to do certain railroad construction work, and the appellant was one of his subcontractors. In his contract with the railroad company, it was agreed that the appellee was to receive $10 per 100 cubic feet for corduroy work. The contract between appellee and appellant is substantially in the same form as the contract between appellee and the railroad company. In the contract between appellant and appellee, however, it is agreed that appellant is to receive $5 per cubic feet for corduroy work.

In order that appellant might carry out his contract and perform the work which he had contracted to perform, the appellee let the appellant have some money and took a mortgage from appellant upon a certain railroad construction outfit, and upon certain live stock, to secure the payment of the debt. This property so mortgaged by appellant to appellee is all of the property of the appellant, and if the claims of the appellee are correct the property is not of sufficient value to pay the debt of appellee. If the claims of the appellant are correct, then the appellant owes the appellee nothing.

The appellee claims that when the contract was made between him and the appellant it was agreed that appellant was to receive $5 per 100 cubic feet for corduroy work, which was one-half of the amount which the railroad company was to allow the appellee for such work; and that, in preparing the written memorial of the contract, the figures "100" were, by a clerical misprision, left out of the contract, and the writing was signed by both parties without a discovery of the error.

The appellant, on the other hand, claims that there was no such agreement as that set up by appellee, but that, on the contrary, the appellee agreed to pay him $5 per cubic foot for corduroy work; and that the writing as signed by the parties, correctly states the agreement which they made. If the contention of appellant is correct, then the appellee was to pay him $5 for work for which the railroad company was to pay the appellee only 10 cents.

The bill in this case was filed for the purpose of having the above contract reformed and the above-alleged mistake corrected, for an accounting before the register for the purpose of ascertaining the amount actually due appellee by appellant, for a foreclosure of the mortgage, and for the appointment of a receiver to preserve the property pending the litigation. The register, without notice, appointed a receiver, and an appeal from his order was taken to the chancellor. When the appeal was heard by the chancellor, both sides were represented by solicitors, and affidavits presenting the claims of each of the parties to the suit, and covering the matters in controversy between them, were submitted to him for his consideration.

The chancellor, after allowing an amendment to the bill overruled the appellant's demurrer to the bill as amended, and rendered a decree confirming the order of the register appointing a receiver.

(1) The bill alleges that the indebtedness secured by the mortgage was $3,325, owing at the time of the execution of the mortgage, and all future money or advances, of any kind, made by appellee to appellant; and that, when the bill was filed, there was $5,000.14 due appellee by appellant. The bill further alleges that this money was obtained by appellant from appellee for the purpose of carrying out his contract to construct a part of the railroad for appellee.

The question as to whether there is anything due appellee on said mortgage indebtedness depends upon the state of the account between appellee and appellant, growing out of the contract on the part of appellant to do said work. If the corduroy work was to be paid for at the rate of $5 per cubic foot, instead of $5 per 100 cubic feet, then there is nothing due appellee by appellant. As the contract, on its face, says that the work was to be done at "$5 per cubic feet," we think it plain that, in an action of detinue, the appellant would be able to defeat the appellee's suit. In other words, the law does not furnish to appellee a plain and adequate remedy; for, if appellee's claims are correct, it is necessary for him to obtain a correction of the contract in a court of equity, in order that the written evidence of the contract may be made to speak the truth. In a court of law the appellee would be held to the letter of the contract, whether that letter be a truthful letter or not. In a court of equity he can have the contract corrected, so as to make it speak the true agreement.

The bill alleges the insolvency of appellan...