Francis v. Gilreath C. & I. Co.

de GRAFFENRIED, J. The appeal in this case is from a decree overruling a motion to dissolve a temporary injunction. The bill is filed by the appellee, and alleges that during the year 1908 complainant purchased from appellant, W. J. Francis, as trustee, 250 shares of the capital stock of the Burn well Coal Company for $25,000; that, at the time of said purchase said Francis was the president of said company, and that certain assets of said company (denominated “liquid” or “quick” assets) were retained by said “Francis, Trustee,” out of which the debts of said Burnwell Coal Company were to be paid; that in the purchase of said stock complainant paid $10,000 in cash and gave two notes for $7,500 each, payable in 6 [341] and 12 months, attaching stock certificates as collateral security; that one of said notes has been paid, and said Francis, as trustee, has advertised the collateral for sale, on account of failure to pay the remaining note; that said Francis, trustee, has paid off all of the debts of said Burnwell Company, and has in his hands a considerable amount of money (approximately $8,-500), the proceeds of the said assets left in his hands, and refuses to account for the same; that a discovery is necessary in order to ascertain the exact amount of funds in the hands of said Francis, trustee, as the books and papers of said company were left in his hands; that the complainant is now the owner of all of the shares of stock in said Burnwell Company; that said Burn-well Company has assigned to complainant its claim against said Francis, trustee, for the balance of proceeds of said assets in his hands; that according to the original agreement said Francis, trustee, was to account for what remained in his hands of said assets, after paying off said debts of said company; that complainant is willing and ready to pay any amount which may be found due on said note, after the same has been credited by the amount in the hands of said Francis, after payment of said debts. It is averred, on information and belief, that said Francis is insolvent, and that while the records of Jefferson county sIioav certain property assessed to him “as trustee,” Avhich is shoAvn to be subject to a mortgage, yet complainant does not know for whom he is trustee; that if Said stock is sold it will Avork' irreparable injury to complainant. An amendment to the bill enters more into detail as to how the entire remaining stock aauis acquired, through the Union Coal & Coke Company, etc., and denies that there Avas any agreement that Francis was to retain tor himself and associates the overplus of assets in his [342] hands, after paying said debts. The prayers of the bill are for an injunction against the sale of said capital stock, for an accounting, and for discovery. The answer admits the receipt of the “liquid” or “quick” assets for the purpose of paying off the debts of said Burnwell •Company, but claims that, according to the agreement, whatever remained of the proceeds of said assets, after the payment of said debts, was to be retained by said W. J. Francis, trustee, for the benefit of himself and associates. It states that the respondent is not able to state the exact amount received by him from said assets, as the books of the Burnwell Company were left in the hands of R. H.-Nason as secretary and treasurer of said company, but admit that, after paying said debts, he has in his hands about $7,000. The answer also denies that he is insolvent, and refers to- certain lands assessed to him as trustee in Jefferson county, and states that, while the same are subject to a considerable mortgage for a bonded indebtedness, yet the Union Coal & Coke Company are under obligations to relieve said lands from said mortgage. If the answer does not clearly deny the facts, upon which the equity of the bill rests, but sets up new matter the burden of proof of which rests upon the respondent, the injunction should not be dissolved, and “an injunction will not always be dissolved, even if the answer deny the equity of the bill, if the court can see good reason in the facts disclosed why the injunction should be retained.”—Rembert & Hale, Adm’rs, v. Brown, 17 Ala. 667, 671; Farris & McCurdy v. Houston, 78 Ala. 250, 254; Jackson v. Jackson, 91 Ala. 292, 294, 295, 10 South. 31; Mobile & Montgomery Ry. Co. v. Alabama Mid. Ry. Co., 123 Ala. 146, 163, 26 South. 324; Mabel Mining Co. v. Pearson C. & I. Co., 121 Ala. 567, 571, 25 South. 754. [343] The bill shows that the complainant is entitled to equitable relief, to have an accounting by a trustee, and to discovery, and the answer is not such as to demand a dissolution • of the injunction. The decree of the court is affirmed. Dowdell, C. J., and Anderson and Mayeield, JJ., concur. The foregoing opinion was prepared by Justice Simpson, since deceased,»and, having been passed in formal consultation, it is announced as the opinion of the court.