The bill for accounting contained the necessary averments. Julian *Page 624 v. Woolbert, 202 Ala. 530, 81 So. 32. The filing of such a bill implies that there are items on both sides rendering the balance uncertain and necessary to be ascertained by the court, and that the complaint will pay any balance that is ascertained to be due respondent. To such a bill, a respondent need not file a cross-bill to be allowed his credits, or have a proper decree for a sale to enforce his balance due, if his credits exceed complainant's due claims. This is one of the exceptions to the general rule in equity, that a respondent will be granted affirmative relief only on a proper cross-bill.
The demurrer of complainant, as respondent to the cross-bill, should have been sustained, under many decisions of this court. Grand Bay Land Co. v. Simpson, 205 Ala. 347, 87 So. 186; O'Kelley v. Clark, 184 Ala. 391, 63 So. 948; Southern Investment Co. v. Galloway (Ala. Sup.) 90 So. 300;1 Black v. Woodruff, 193 Ala. 327, 69 So. 97, Ann. Cas. 1918C, 969.
See, also, Seed v. Brown, 180 Ala. 8, 60 So. 98; Masterston's Case, 32 Ala. 437; Alston v. Alston, 34 Ala. 15; Billingsley's Case, 37 Ala. 425; Sims v. McEwen's Adm'r,27 Ala. 184; Goodwin v. McGehee, 15 Ala. 232; Nelson v. Dunn,15 Ala. 501; Taunton v. McInnish, 46 Ala. 619; Cotton v. Scott,97 Ala. 447, 12 So. 65; Langdell, Eq. Pl. §§ 122, 123; Sims, Ch. Pr. § 643. The instant exception to the general rule is supported by "the American and English cases. Craig v. Chandler, 6 Colo. 543, 547; Wells v. Strange, 5 Ga. 22, 28; Smith v. Hazelton, 34 Ind. 481, 486; Goldthwait v. Day,149 Mass. 185, 187, 21 N.E. 359; Tyler v. Boyce, 135 Mass. 558,561; Hyre v. Lambert, 37 W. Va. 26, 28, 16 S.E. 446; Grove v. Fresh, 9 Gill J. (Md.) 280; Raymond v. Carne, 45 N.H. 201; Scott v. Pinkerton, 3 Ed. Ch. N.Y. 70; Downes v. Worch,28 R.I. 99, 65 A. 603, 13 Ann. Cas. 647; 1 Pom. Eq. Jur. (3d Ed.) §§ 386, 388, 393." Grand Bay Land Company v. Simpson, supra,205 Ala. 350, 87 So. 188.
In Southern Investment Co. v. Galloway, supra (a recent decision), the bill was by a purchaser of land against the seller to enforce specific performance of a contract of sale and to enjoin an action at law to dispossess him. Stating the averment of the bill, the opinion says of the contract that time was made of its essence; that provision for forfeiture of the entire amount, paid in the event of failure of performance on the part of purchaser, was contained therein; that the bill averred performance of purchaser's part of the contract, and, if mistaken in this, she will do as the court directs, being ready, willing, and able to carry out her part of the contract; quotes from Root v. Johnson, 99 Ala. 90, 10 So. 293, to the effect that:
"Forfeitures are not favorites in equity, and unless the penalty is fairly proportionate to the damage suffered by the breach, relief will be granted when the court can give by way of compensation all that could be reasonably expected" (8 Am. Eng. Encyc. of Law, 449)
— propounds the inquiry, if there had been a forfeiture, should it be permitted in equity, if the defendant had not been and will not be injured thereby, and the complainant would be, if it will be allowed? and answered saying: "We think not." Discussing tender, it is declared that "respondent has refused to accept the tender of payment * * * under the sale contract," and the relative losses of the respective parties are balanced on the authority of Franklin v. Long, 191 Ala. 310, 313,68 So. 149; Root v. Johnson, supra; 1 Pom. Eq. Jur. § 450. The several equities of the parties under the contract were discussed and held sufficient, under the bill, for accounting against demurrer, not only to the extent of a statement of the mutual accounts of the parties, but for ascertainment of the right of the vendor to forfeiture, and if so, whether the same would be allowed in equity. This recent decision has special application to the instant bill.
We are of the opinion the legal and equitable rights of the parties to the original bill were put in issue thereby, and that respondent's rights were not necessary to be set up by a cross-bill, that presented no relief to which the cross-complainant (respondent in original bill) was entitled, independent of the original bill. This ruling has a material bearing on the allowance of a reasonable attorney's fee claimed by respondent (complainant in the cross-bill), and allowed its attorneys for filing answer and cross-bill, and the $450.84 testified by Scott to have been offered as payment and refused before the original bill was filed. If the full amount due was refused by the Terry Furniture Loan Company, it may not thereafter be allowed attorney's fees to prepare its defense to the bill, for accounting (Schillinger v. Leary, 201 Ala. 256,77 So. 846), and has a material bearing on the taxation of the costs (Manning v. Carter, 201 Ala. 218, 77 So. 744).
The bookkeeper of Crotwell Bros. testified that there was a discount of $140.90 allowed on the materialman's lien, held by Crotwell Bros. If this be true, it enured to the benefit and credit of Frank Hamilton and will be applied to his credit on reference.
The decree of the circuit court, in equity, is reversed and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.
On Rehearing. PER CURIAM. The application for rehearing is overruled.
ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.
1 Ante, p. 445. *Page 625