Hulsey v. Walker County , 147 Ala. 501 ( 1906 )

ANDEBSON, J.

Mr. Pomeroy, in his excellent work on Equity Jurisprudence (3d Ed.) vol. 4, § 1421, says: “The instances in -which the legal remedies are held to be inadequate, and therefore a suit in equity for an accounting ’ proper, are where there are mutual accounts between the plaintiff and the defendant (that is, where each of the two parties has received and paid an account of the other); where the accounts are all on one side, but there are. circumstances of great complication or difficulties in the way of adequate- relief at law; where a fiduciary relation exists between the parties and the duty rests upon the defendant to render an account.” These principles are in complete harmony with the previous decisions of this court. — Pollak v. Claflin, 138 Ala. 644, 35 South. 645; Beggs v. Edison, 96 Ala. 298, 11 South. 381, 38 Am. St. Rep. 94; Avery v. Ware, 58 Ala. 475; Knotts v. Tarver, 8 Ala. 743; State v. Bradshaw's Adm’r. 60 Ala. 239.

The bill in the case at bar does not show mutual accounts, as it consists of certain claims against the defendant, and admits an offset, or credit, of $64.- — Crothers v. Lee, 29 Ala. 337; 21 Am. & Eng. Ency. of Law, p. 244. Nor is the account so complicated that the respondent’s liability cannot be expediently ascertained in a court of law. — Tecumsch Co. v. Camp, 93 Ala. 572, 9 South. 343.

As to the existence or result of a fiduciary relationship between the parties, the respondent does not belong to that class of trustees, such as administrators, guardians, etc., over whom equity entertains a general jurisdiction, and it is unnecessary for us to decide whether or not his position was such as to- preclude him from the general requirements for an accounting, since, if lie did occupy such a position, the complainant would have no right to an equitable accounting, in the absence oí mutuality and complications, when the matters for which an accounting is sought are peculiarly within the knowledge of the respondent. And the bill does not seek a discovery, or aver that the facts cannot be proved without the answer of the respondent. It avers that it is difficult to ascertain the amounts due without an accounting; but that is not sufficient. “The jurisdictidn of the chancery court cannot be maintained upon the ground of discovery alone, unless it is averred in the bill that complainant is unable to prove the facts without the answer of the defendant.” —Crothers’ Case, supra; Perrine v. Carlisle, 19 Ala. 690.

The bill as amended was without equity, and the chancellor erred in not sustaining the motion to dismiss, and the decree is reversed, and one is here rendered dismissing the bill.

Reversed and rendered.

I-Iaralson, Dowdell, and Simpson, JJ., concur.