Zadek v. Burnett

• Decision Date: 11 January 1912
• Parties: ZADEK ET AL. v. BURNETT ET AL.
• Court: Alabama Supreme Court

57 So. 447

176 Ala. 80

ZADEK ET AL. v. BURNETT ET AL.

Supreme Court of Alabama

January 11, 1912

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

Bill for an accounting by Hattie Burnett and others against S Zadek and others. Decree for complainants, and defendants appeal. Affirmed.

W. A Gunter, W. M. Blakey, and W. C. McGuire, for appellants.

L. A Sanderson, for appellees.

SOMERVILLE J.

The bill of complaint was filed by the appellees, who are the widow and minor children of one Jim Burnett, and its primary purpose was for an accounting to ascertain the residue of indebtedness, if any, due to the respondent from said Jim Burnett on an account covered and secured by several mortgages on live stock and other property executed by him to respondent Zadek, who was an advancing merchant, with prayer for redemption, if any balance were due thereon, and for cancellation, if found to have been satisfied. By amendment, the scope of the bill and prayer for relief were made to include, also, certain mortgages executed by complainant Hattie Burnett, the widow, to said Zadek, and covering the same property embraced in her husband's mortgages. Demurrers to the amended bill were overruled, and a decree was finally rendered, ordering the register to state an account between the parties, and report same to the court. An account was stated, pursuant to this decree, and the report showed a balance due complainant of $150. The respondent filed a number of exceptions to the report, only two of which were sustained; the result being a final decree in favor of Hattie Burnett for $89. It was decreed, also, in favor of all the complainants that the several mortgages recited in the bill, as amended, had been satisfied in full; and that the register should so mark them.

The assignments of error are based on the overruling of respondent's demurrers, and certain of his exceptions to the register's report; and on the decreeing of personal relief to Hattie Burnett, to which her co-complainants were not entitled.

1. Complainants, being all jointly interested in the property covered by the mortgages, are proper co-complainants in a bill for accounting and redemption or cancellation. And whether the property in question was subject to administration or not, as widow and heirs at law of Jim Burnett, their interest is sufficient to entitle them to prosecute such a suit. It is clear, also, that their community of interest in the mortgaged property refutes the charge of multifariousness in the bill. We think the demurrers were without merit, and were properly overruled.

2. It may be conceded that, as a general rule, where several complainants file a bill jointly and make no case for joint relief, the bill should be dismissed. Davis v. Williams, 130 Ala. 530, 30 So. 488, 54 L. R. A. 749, 89 Am. St. Rep. 55. On final submissions this rule is qualified by section 3212, Code 1907.

However, where on the pleadings and proof all the complainants are entitled to the main relief prayed for, as in the case before us, the court is not impotent to adjust the rights of individuals, and to grant individual relief also, where such rights grow out of and are inseparably connected with the chief subject-matter of the bill, as to which common relief may be and is granted. This accords with the equitable maxim which requires all the rights of the parties to be settled in one suit, when the jurisdiction is in proper exercise for one purpose; and we are aware of no authority which denies this view. The decree, finding a balance due from respondent to Hattie Burnett, was not, in this aspect, erroneous.

3. The register found that the balance carried forward from the year 1903 included usurious interest, and corrected it by reduction to an 8 per cent. basis. It is insisted that the only evidence relating to this item--the testimony of Abraham--shows that 15 per cent. interest was calculated on the balance, but did not enter into its composition. The record shows question and answer as follows: "Q. You charged them at the rate of 15 per cent. interest, did you not, on the balance brought forward from 1903, and also for merchandise sold him during this year? A. Yes, sir." It is obvious that, whatever the witness really intended to say, his answer, as here reported, whether considered alone or in connection with the rest of his testimony, is sufficient to warrant the finding of the register. If the answer quoted was mistaken, the trouble lies in the answer itself; and we cannot impute error to the interpretation given to it by the register.

But it is urged that the finding is erroneous, because the bill contains no charge of usury as to this item. Where usurious interest is embodied in a contract for the payment of money, whether the debtor is attacking or defending on that ground, it is well settled that he must distinctly set forth the facts showing the usury, and specify the items thus infected. But this rule has no application where, without any agreement, express or implied, usurious interest is gratuitously added to an account; and especially where, as here, it does not appear that complainants had any knowledge thereof, or made any payments with respect thereto. In such a case the law fixes the rate of interest, and the accounting must conform thereto, though unaided by suggestion from the pleadings.

4. Respondent's account, as stated by him, shows a credit of 2,083 pounds of cotton on October 4, 1904, amounting to $196.58, with deductions of $2, $4.58, and $20; the net credit entered being $170. The original transaction is shown in detail by respondent's receipt to Jim Burnett on that date, showing four...