161 So. 825 | Ala. | 1935
The original bill of complaint, in so far as it seeks an avoidance of a multiplicity of suits, is defective. While some confusion, at one time, existed as to the essentials of a bill of peace, or one to prevent a multiplicity of suits, arising out of an apparent conflict between the cases of Turner v. City of Mobile,
The case of Cleveland v. Ins. Co. of North America,
While the bill of complaint, as amended, attempts to set up such a complication as to call for an equitable accounting, it fails to show a necessity therefor or to negative an adequate remedy at law for obtaining the object of the bill; that is, the collection of the amount promised by the respective directors of the closed banks growing out of their written obligation to become separately liable for $5,000 each. Conceding, only for a decision of this case, that their liability would depend on a failure of the assets of the closed banks to meet their liabilities, and if a defense at law should raise this issue, it might be that such a complication would arise as to make an equitable accounting necessary, but the bill charges a shortage of the assets and an obligation of the respondent directors to meet pro tanto this shortage to the extent of their respective guaranties. The bill does not charge that these directors are resisting payment because of no shortage of the assets or are questioning this complainant's creature, the new bank, in charging off the assets to meet obligations, as found by the new bank, is incorrect or improper. The bill does aver that the respondent directors have declined to pay and have denied any liability upon their guaranty, but that is not the equivalent of charging that they are basing their nonliability upon the fact that there is no shortage in the assets or that the new bank has not properly administered the affairs of the closed banks and should be charged with assets improperly stricken or charged off or other facts which would render an equitable accounting necessary. Aught appearing, the defense or nonliability may be based on a ground not involving an accounting.
Moreover, it is questionable whether the respondent directors would have the right to question the sufficiency of the assets or the handling of same as a defense to an action for the sum of their guaranty, as section 5 of their obligation, Exhibit B to the bill of complaint, provides: "It is expressly agreed that the undersigned waive any right to have suit brought upon any item of indebtedness charged off or rejected for the purpose of determining the question of deficiency under said Principal Agreement, and agrees to make payments *423 on call hereunder without respect thereto."
There is, of course, a provision in the main agreements providing for a distribution of the assets of the closed banks in case of an excess and for the reimbursement in whole or in part of these respondent directors for the sum paid by them upon call, but their obligation to pay upon call is in no wise dependent upon the handling of the assets of the closed banks.
In the case of Comer v. Birmingham News Co.,
The trial court erred in not sustaining the demurrer to the bill of complaint, and the decree of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and POSTER, JJ., concur.