Lindsey Lumber Co. v. Mason , 165 Ala. 194 ( 1910 )

McCLELLAN, J.

— Necessarily denying the adequateness of the remedy at law, the jurisdiction of equity for an accounting, though on one side only, is undoubted, where, from the facts averred, discovery is sought of matters peculiarly within the knowledge of the respondent, and. without which complainant cannot establish the measure of his rights against the respondent.— Beggs v. Edison co., 96 Ala. 295, 11 South. 881, 38 Am. St. Rep. 94; Hall v. McKeller, 155 Ala. 508, 46 South. 460 — among others. Aside from the question whether the Canoe Mill Company is an indispensable party to this cause, the chief points to which the solicitors have attended in briefs are practically determinable by a construction of the contract.

The insistence for appellant, Lindsey Lumber Company, is that the relation, created by the contract, between the Canoe Mill Company and the Lindsey Lumber Company, was that of the vendor and vendee, respectively, of the entire cut of the mill of the former. On the other hand, and as decided by the learned chancellor, the appellees’ contention was that the contract created the relation of principal and agent, between the parties, respectively. If the latter contention is sound, it results from a cardinal rule of equity that the agent could not take and hold a profit out of transactions had Avithin the scope of the agency. — 2 Ency. L. & P. pp. 1057, 1059. In order to sustain the appellants’ insistence it is, of course, essential to hold that the common intent of the parties, under this contract, was to effect a sale of the entire output — cut—of the mill to- the appellant. If the contract will not admit of that interpretation, it is not necessary to do more than state that the relation between the parties was that of principal and agent.

From the contract it is necessarily inferable that the Canoe Mill Company operated a sawmill, the product being for sale; that this company was not financially full-handed nor favorably situated otherwise to promote the sale of the mill’s product and to facilitate the collection of the proceeds of the sales thereof. On the other hand, the Lindsey Lumber Company was favored in these respects. In this state of circumstances the Lindsey Lumber Company engaged to furnish the Canoe Company orders “at current market prices, suitable to cut all of the (Canoe Company’s) logs into,” for a stipulated period that was by mutual agreement extended, “and to arrange for such financial assistance as the Canoe Company may require from time to time to operate the mill, to make all collections for timber and lumber, to render such assistance as may he possible in getting cars to move said lumber.” In consideration of these services, the Canoe Company contracted to pay to the Lindsey Company fl per thousand feet for all lumber cut and shipped, regardless of whether the orders were secured by the Lindsey Company or accepted bj the Canoe Company without the service of the Lindsey Company. It was also provided that the latter class of orders could not be accepted so as to conflict with the filling of the orders of the former class.

When read in the light of the situations of the parties and of what was assumed as obligations on their respective parts, there can be no doubting, even, that the purpose and manifest common intent was'to create a relation of principal and agent, and in no event to constitute the Lindsey Company a vendee of the cut of the mill. Aside from anything else, the employment of the word “orders,” as therein contexted, put the matter beyond all cavil. Clearly the services in that regard contemplated the inducing of third persons to buy the product of the Canoe Company’s mill. Other features, such as the stipulation for compensation for the services to be rendered by the Lindsey Company, obviously negative any intent whatever to sell the product to the Lindsey Company. The provision with respect to the current market price was inserted in the sole interest of the Canoe Company, and its evident office was to protect that company from orders, taken or received by the Lindsey Company, based on a price below the current market price. There is nothing- in the instrument to warrant an insistence that a sale of the cut of the mill to the Lindsey Company was at all contemplated. The compensation to the agent is fixed by the contract at the sum of $1 per thousand feet of the cut of the mill.

The assignment by the Canoe Company to the appellees contains these words. * * All sums owing to it by the Lindsey Lumber Company under and by virtue of a certain written agreement entered into by and .between said Canoe Mill Company and Lindsey Lumber Company, dated November 12, 1906 (that stated above, we explain), or under or by virtue of any transactions based upon or growing out of said contract or any business-done thereunder.” The comprehensiveness of the language used necessarily concludes against the insistence that the subject of the assignment was only claims arising out of the original contract, before its extension by mutual agreement.

The bill as amended is sufficient in averment of facts leading to the necessity for a discovery, in connection with the general averment of inability to make the requisite proof without the discovery prayed, to avoid any objection on that account. — Wood v. Hudson, 96 Ala. 469, 11 South. 530.

If the Canoe Mill Company is not indebted to the Lindsey Lumber Company in a sum in excess of the indebtedness of the latter to the former company, it is evident that the Canoe Company is not a necessary party to this cause, .notwithstanding the assignees (complainants) are but substitutes in the premises for that company. It does not appear that such is, or will develop to be, the case. On the contrary, the whole theory of the bill is that the Canoe Company, to whose rights complainants have succeeded, is a clear creditor of the Lindsey Company, the agent. It may. be that in the subsequent pleadings in the cause it will develop that such is not the case. If that should be discovered, it may be a question whether the Lindsey Company would be entitled to a decree over, if so found on the accounting, against the Canoe Company without cross-bill properly invoking that relief. We do not decide the question.

The decree overruling the demurrers must be affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, J.J., concur.