60 So. 931 | Ala. | 1913
Tte appellee made a contract to do certain railroad construction work, and the appellant was one of Ms sub-contractors. In tis contract with tte railroad company, it was agreed ttat tte
In order that appellant might carry out his contract and perform the work which he had contracted to perform, the appellee let the appellant have some money and took a mortgage from appellant upon a certain railroad construction outfit, and upon certain live stock, to secure the payment of the debt. This property' so mortgaged by appellant to appellee is all of the property of the appellant, and if the claims of the appellee are correct the property is not of sufficient value to pay the debt of appellee. If the claims of the appellant are correct, then the appellant owes the appellee nothing.
The appellee claims that when the contract was made between him and the appellant it Avas agreed that appellant Avas to receive $5 per 100 cubic feet for corduroy Avork, Avhich was one-half of the amount Avhich the railroad company was to allow the appellee for such work; and that, in preparing the written memorial of the contract, the figures “100” Avere, by a clerical misprision, left out of the contract, and the writing was signed by both parties without a discovery of the error.
The appellant, on the other hand, claims that there Avas no such agreement as that set up by appellee, but that, on the contrary, the appellee agreed to pay him $5 per cubic foot for corduroy work; and that the writing as signed by the parties, correctly states the agreement Avhich they made. If the contention of appellant is correct, then the appellee was to pay him $5 for work for which the railroad company was to pay the appellee only 10 cents.
The chancellor, after allowing an amendment to the bill, overruled the appellant’s demurrer to the bill as amended, and rendered a decree confirming the order of the register appointing a receiver.
The question as to whether there is anything due appellee on said mortgage indebtedness depends upon the state of the account between appellee and appellant, growing out of the contract on the part of appellant to do said work. If the corduroy work was to be paid for at the rate of $5 per cubic foot, instead of $5 per 100 cubic feet, then there is nothing due appellee by appellant. As the contract, on its face, says that
The bill alleges the insolvency of appellant, sufficiently indicates the necessity for the correction of the contract, shows that the amount due appellee on the mortgage indebtedness depends entirely upon the state of the indebtedness existing between appellee and appellant, growing out of their dealings with each other under the contract which is sought to be corrected; and we can see no reason why, as a part of the controversy between the parties can be settled'Only in a court of equity, the entire controversy between them should not be settled in that court. The bill, as amended, contains equity.
Under the allegations of this bill, verified by affidavit as we have above stated, we have an insolvent man in possession of perishable personal property — a large part of'it live stock, with the consequent necessity of being fed, watered, and cared for — and which property is mortgaged to the full extent of its value to the appellee. We have that insolvent man ready and willing to defeat the appellee’s claim by undertaking through a clerical misprision, to collect from appellee $5 per cubic foot for work Avkich he had contracted to do at 5 cents per cubic foot. This claim for such remunera-tion savors of bad faith, and casts suspicion upon every act of appellant in and about this transaction. In fact, it gives a meaning which nothing else could give to the
We quote with approval the following extracts from Hayes v. Jasper Land Co. et al., 147 Ala. 340, 41 South. 909: “A receiver should not be appointed at any stage of the proceedings, if any other remedy will afford adequate protection to the party applying.” “The general rule is well established that the power to appoint a receiver and sequestrate property will be exercised with great caution; and a resort to this remedy can only be had in extreme cases, and where it appears that without it the plaintiff will sustain irreparable loss.”
We have quoted the above rules because, as we view this matter, the chancellor had them in mind and acted within them when he refused to disturb the order of the register in appointing a receiver. The general allegations of the bill showing the necessity for the appointment of a receiver, considered alone, may be subject to some criticism; but when those allegations are read in connection with the other allegations of the bill showing the actual bad. faith of appellant in laying-claim to remuneration at the rate of $5 per cubic foot for work which he had contracted to do at 5 cents per cubic foot, and the insolvency of the appellant, who is charged with having- disposed of some of the property, and the character, needs, and situation of the mortgaged property are considered, a receivership pending this litigation seems to have been not only appropriate, but necessary.
The bill shows that the appellant had completed the work which he had contracted to do for appellee; that the mortgaged property was insufficient in value to pay the mortgage debt; that the property was within 35 miles of the state of Florida and 10 miles from a railroad; that appellant had disposed of some of the mortgaged property, and had threatened to move the property away. These allegations, taken in connection with the appellant’s insolvency and the character of the claim which he sets up as a defense to appellee’s demand, supported, as we think all the allegations of the bill of complainant are, by affidavits appearing in the record, were sufficient to authorize the chancellor to confirm the action of the register in appointing a receiver for the property.
The decree of the court below is affirmed.
Affirmed.