Gilchrist v. Gilmer , 9 Ala. 985 ( 1846 )

GOLDTHWAITE, J.

1. Although it is evident enough the party has mistaken the sum for which the bill of exchange was drawn, the amount of which he now seeks, with other sums, to recover, yet it is a mistake to confound a misdescription like this, with the serious defect of omitting to prove the case stated by the bill. The general rule is familiar, that the proof must correspond with the allegation. [Gibson v. Carson, 3 Ala. Rep. 421; Clements v. Kellogg, 1 Ib. N. S. 330.] But we apprehend it applies only when the evidence discloses a cause for relief different from that set up by the party pleading it. It is said by a very respectable commentator on equity evidence, that courts of equity have ’usually shown great indulgence in cases of inaccuracy, whether caused by mistake, or deficiency of information. [Gresley Eq. Ev. 170.] Here it is unimportant whether the bill paid was $1500 or $1530, as the right to relief does not arise from any description of the bill, but grows out of the fact that it is the bill intended to be described in the deed of trust. Inaccuracy of description in the deed itself, is no cause to prevent the party from relief, even when the question is raised at law. [Graham v. Lockhart, Jan’y term, 1846.]

2. On the construction of the deed itself, we are very clear it was intended by the grantor, to provide in the first instance only for his sureties and designated creditors. This is evident from the fact that sureties and some preferred creditors are first named, and afterwards the creditors generally are let in. As the complainant, in his character of a creditor is not named, we are unable to say that a provision for any liability he may be under for the assigning partner, is sufficient to cover all matters that person or his firm were liable to him. As a surety he is indemnified, but as a creditor he seems to have no preference over the general class.

3. We do not very well understand, from the statements of the bill, or the proofs, what are the facts with relation to the item for counsel fees. If previous to the assignment, there was an agreement that the suit should be defended, and the costs should be paid by Ryan, then it would seem as if this was a liability of the firm, and it might be let in under the terms of the deed; but if, as we infer, the money was expended in resisting the demand, it is clear the payment was not made as surety, and therefore is not within the deed.

The decree must be reversed, and in the court below the Master will be directed to state an account of what is due to the complainant for monies paid as surety, with interest from the payment, from which will be deducted the sums due the defendant, as trustee for the assigned demands, after deducting from the latter the debts due the complainant as a general creditor.

Reversed and remanded.