Boriss Const. Co. v. Deasey

103 So. 470 | Ala. | 1925

This appeal is from a decree overruling the demurrers of appellants to appellee's bill. Broadly stated, from the allegations of the bill, it appears that complainant entered into a contract with the Boriss Construction Company to procure engagements in construction work to be performed by said company, and to supervise and direct such work, and to receive by way of compensation for such services 35 per cent. of the net profits of each engagement so procured and completed. A number of such building operations are designated, and those that have been fully completed are also named. One of the building operations was that of the Concord schoolhouse, which is 95 per cent. completed, and as to which there is yet a substantial sum due by the county board of education, and out of which a substantial profit has been made.

The company agreed to keep the books of account, showing all matters of expenditure and collections on account of these building operations, and showing all profits derived, and to account to complainant therefor. Such books and accounts have been kept, but complainant's demand for a settlement of account has been denied, and the information therein contained is peculiarly within the knowledge of the respondent and its president, Julian I. Boriss, without a disclosure of which complainant will be unable to establish the measure of his rights.

Under these averments in a suit at law, for what an amount would plaintiff sue, and, as asked in Wood v. Hudson, 96 Ala. 469,11 So. 530, "if he should state an amount at a venture in a declaration, by what testimony would he proceed to establish his claim, unless by that of the respondents themselves?" The bill therefore shows the duty resting upon respondents to render complainant an accounting, and disclose the inadequacy of the remedy at law, occasioned by the necessity of discovery as preliminary to relief. There is equity in the bill. Wood v. Hudson, supra; Va. Ala., etc., Co. v. Hale, 93 Ala. 542,9 So. 256; Lindsey v. Mason, 165 Ala. 194, 51 So. 750; Hall v. McKeller, 155 Ala. 508, 46 So. 460; Rasch v. Peters, 201 Ala. 569,78 So. 913. We are of the opinion the bill sufficiently shows the contract entered into and the building operations procured and supervised.

While recognizing and giving full force to the rule that pleadings are to be construed most strongly against the pleader, this court has frequently stated that nevertheless pleadings are to be given a reasonable common sense construction, as opposed to a strained unnatural and too refined and technical construction. Nor is technical accuracy to all details required. So construing the bill in this cause, we think it states the essential facts necessary to make out complainant's case, and sufficiently informs respondents of the nature of the cause for which they are called upon to defend. Overton v. Moseley, 135 Ala. 607, 33 So. 696; Camper v. Rice,201 Ala. 579, 78 So. 923.

The bill alleges a contract with the Boriss Construction Company, and work done thereunder for which compensation is due. This we think sufficient; the question of validity of any such contract as having been made on the part of the corporation by one authorized thereto, being a matter of proof. It is further argued that an officer of the corporation is a necessary party, discovery being sought — citing Va. Ala., etc., Co. v. Hale, supra.

The bill alleges that John I. Boriss is president of the respondent corporation, and he is made a party to the cause, which sufficiently meets this objection. Nor do we consider the bill defective as one having been prematurely filed. Several of the building operations have been completed, and, while that of the Concord schoolhouse is not fully completed, yet the county board of education is made a party to the end that the sum remaining due, and in which complainant is interested, be not diverted.

It may be the averments of the bill are insufficient to show insolvency, and such a pressing necessity as to justify the appointment of a receiver, though this is a question we need not decide. Weatherly v. Capital City Water Co., 115 Ala. 156,22 So. 140; Weiss v. Goetter Weil Co., 72 Ala. 259; 34 Cyc. 57.

There is no prayer for a receiver, and very evidently these assignments of demurrer were not passed upon by the chancellor, as his decree appears only to rule upon the demurrers to the bill as a whole. Moreover, as no receiver has been appointed or asked for, it is doubtful that the court would feel justified in resting a reversal upon the insufficiency of the averments in that respect under these circumstances; no injury appearing.

It results that the decree overruling the demurrer to the bill will be affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.