Not overruled or negatively treated on appealinfoCoverage
Supreme Court of AlabamaJan 14, 1932
224 Ala. 54 (Ala. 1932)
224 Ala. 54139 So. 91

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6 Div. 50.

January 14, 1932.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Marvin Woodall, of Birmingham, for appellant.

Where the bill shows fiduciary relation, complication of accounts, or the necessity for a discovery of matters peculiarly within the knowledge of respondent, any one of these is sufficient to give the court of equity jurisdiction thereof, and the court will give full relief, whether legal or equitable, as to all purposes relating to the subject-matter of the bill, even though some of them alone would not have been subjects of equitable interposition. First Nat. Bank v. Bradley, 223 Ala. 22, 134 So. 621; Farmers Nat. Bank v. McKinnon, 134 So. 919; Hall v. McKellar, 155 Ala. 508, 46 So. 460; Boriss Const. Co. v. Deasey, 212 Ala. 528, 103 So. 470; Wood v. Hudson, 96 Ala. 469, 11 So. 530; Beggs v. Edison Electric Light Illuminating Co., 96 Ala. 295, 11 So. 381; Cleveland S. Co. v. Guardian Tr. Co., 223 Ala. 363, 136 So. 731.

Peyton D. Bibb, of Birmingham, for appellee.

Under the agreement alleged complainant was to receive a stated amount per month and additional compensation, by way of a stated proportion of fees for collections actually made. An action at law in general assumpsit would be the appropriate remedy. Hence the bill is without equity. Dorrough v. Mt. Pleasant Fert. Co., 210 Ala. 530, 98 So. 735. The vague and general allegations that the account is complicated are not sufficient, especially in view of the agreement exhibited which contradicts such allegations. Numerous items are not necessarily complicated, and debits and credits do not alone constitute a mutual account. Reilly v. Woolbert, 196 Ala. 191, 72 So. 10; Crichton v. Hayles, 176 Ala. 223, 57 So. 696; Beggs v. Edison Electric Light Illuminating Co., 96 Ala. 299, 11 So. 381; Pollak v. Claflin Co., 138 Ala. 644, 35 So. 645; Walthall v. Anderson, 215 Ala. 264, 110 So. 299; Comer v. Birmingham News Co., 218 Ala. 360, 118 So. 360. Where it may be reasonably inferred from the averments of the bill that complainant has full knowledge of the facts inquired of, the bill cannot be sustained as one for discovery. Crowson v. Cody, 207 Ala. 476, 93 So. 420.

Under an arrangement whereby attorneys at law are associated together in rendering legal services in winding up the affairs of an insolvent bank, including collections on outstanding loans, whereby they are to share in the fees collected in agreed proportions, a fiduciary or trust relation exists as to fees collected in which both are entitled to share. In such case there is a duty on the part of each to disclose to the other and account to him for his share of fees collected.

A bill disclosing such contractual relation followed by divers services rendered by complainant thereunder for many months, for which numerous fees had accrued and been collected by respondent, who had failed and declined to account to complainant for his share thereof, thereby becoming largely indebted to complainant, that the several amounts were known to respondent only, and that a discovery is necessary, presents a good case for accounting in equity.

Fiduciary or trust relations giving rise to an active duty to disclose and account is a basic element in such cases. No case for accounting or discovery as a sole basis of equity jurisdiction need appear. These need appear only so far as to show the occasion for an accounting in view of the trust relationship.

The bill here discloses that a part of the demand alleged to be due is complainant's stipulated share in a monthly retainer received by respondent.

This claim does not render the bill demurrable as a whole; nor is it demurrable as to that feature of the bill. That complainant may have an adequate remedy at law to recover this special claim is of no consequence.

Equity jurisdiction being invoked upon other adequate grounds, the court will proceed to grant full relief, including such as may have been had at law. Averments calling for such additional relief are proper and may be essential to good pleading.

The bill before us conforms to the principles above announced, and is good against demurrer. Hall v. McKeller, 155 Ala. 508, 46 So. 460; Julian v. Woolbert, 202 Ala. 530, 81 So. 32; First Nat. Bank v. Bradley, 134 So. 621; Farmers Nat. Bank v. McKinnon, 223 Ala. 698, 134 So. 919, 21 C. J. 116, § 93.

The court below erred in sustaining the demurrer. The decree is reversed, and one here rendered overruling the demurrer.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.