Columbian Equipment Co. v. Mercantile Trust & Deposit Co., 113 F. 23

Columbian Equipment Co. v. Mercantile Trust & Deposit Co.

113 F. 23 | 5th Cir. | 1902

PER CURIAM.

The cross complainant and appellant asserts two claims against the appellee: (i) A claim .for $6,ooo purchase money, which it paid on the contract of purchase; and (2) $3,500, which it alleges it expended in improvements and betterments on the property. We first consider the latter claim.

*25It is alleged in the cross bill that “while in possession of said railway property” the cross complainant “expended in improvements and betterments thereon the sum o£ $3,500.” The answer of the appellee denies this averment. No evidence is offered on the subject. It prayed that a lien may be declared on the property mentioned in the cross bill for the amount so expended, and for a reference to a master to ascertain the amount, and for a personal decree against the appellee. The bill does not show how the $3,500 was spent; that is, what improvements were made, or what investment of it was made. Conceding that it is sufficiently alleged that it was used in “improvements or betterments” without stating the facts, there should have been some evidence offered to sustain the averment. A reference will not be made to state an account without some evidence to show the necessity for the accounting. An order for an .accounting is not made to enable the complainant to make out his case before the master. There must be, at least, sufficient evidence to show the right to demand the accounting. Railroad Co. v. Williams, 94 Va. 422, 26 S. E. 841. There not being sufficient evidence as to this claim to require the court to make a reference, there was certainly not enough to authorize a decree for this sum in favor of the cross complainants.

The other claim in the cross bill is for the sum of $6,000 paid on the purchase money. Three thousand dollars, it is alleged, was paid “at or about the date of said contract, and the further sum of $3,-000 principal, with interest accrued, upon the 15th day of February, 1895.” A written agreement is in evidence that the cross complainant “earned $5,604 through the operation of the property while in its possession.” It is not stated in the agreement whether these earnings were gross or net. Allowing a credit on the $6,000 for these earnings would leave a balance of $396.

The appellee received this purchase money in trust for distribution. It had no claim to the money except as trustee. The board, of directors of the appellant, at ah adjourned meeting on February g, 1895, “resolved that the Mercantile Trust 8z Deposit Company are hereby authorized to make such disposition o£ $3,000 heretofore paid, by this company as a part purchase price upon said property, and held in trust by them, as they may see fit in accordance with said agreement.” It is not shown that the appellee has not made a legal disposition of the money. It is not shown that it retained any part of the $6,000 of purchase money. The appellee, we think, was authorized by the conduct of the appellant to distribute the funds. On the pleadings and evidence we could not presume that it was holding' idle money at the time this litigation began. These considerations would dispose of the case, we think, even if it be conceded that the contract was ultra vires, — a question we do not decide.

After a careful consideration of the oral and printed arguments in behalf of the appellant, we are of opinion that the circuit court did not err in dismissing the cross bill. The decree is affirmed.