Cudd v. Cowley , 203 Ala. 665 ( 1919 )

I concur in the conclusion reached by Judge SOMERVILLE, but for different reasons. As for the point of difference between Judge McCLELLAN and those members of the court who concur in the opinion of Judge SOMERVILLE, there is no doubt that a stated account may be impeached for fraud or mistake by an original proceeding in equity brought for the purpose. There is no disagreement as to that. But —

"It [an account stated] may also be impeached when interposed as a defense to an action, either at law or in equity, for a preliminary proceeding to set it aside is never necessary to enable a plaintiff to make his principal cause of action available. Wherever it is thrust forward, in whatever form of action it is pleaded, it may be impeached." 1 R.C.L. p. 218, § 17, citing Gutshall v. Cooper, 37 Colo. 212, 86 P. 125,6 L.R.A. (N.S.) 820; Dickerson v. Nabb, Sneed, Ky. Dec. 320, 2 Am. Dec. 725.

The equity of the bill, in my judgment, rests upon the proposition that, in addition to its legal aspect, the controversy involves an equitable estate or interest, viz. the right to a foreclosure if any part of the indebtedness comprised within the stated account is justly due, and the court of equity will intervene to restrain the action at law and decide the whole controversy, since foreclosure is an equitable remedy, and in order to exclude the remedy in equity the remedy at law must be as complete, as practical, and as efficient to the ends of justice and its prompt administration as a remedy in equity. Boone v. Byrd, 201 Ala. 562, 78 So. 958.