Opinion
No. 29943.
May 16, 1932.
1. ACCOUNT. Bill alleging fixed sum due for live stock sold did not give equity court jurisdiction on ground accounting was required.
Bill alleged sale and delivery of fixed number of sheep and cattle at stated price, amounting in aggregate to fixed sum upon which balance of five hundred dollars on deposit with seller was credited, leaving a definite and fixed sum alleged to be due, so that it was a simple money demand, and there could be no necessity for invoking aid of court of equity to state an account between parties.
2. DISCOVERY. Bill held to present no basis for equitable jurisdiction on ground of discovery as to whether buyer paid seller's agent for sheep sold.
Bill alleged that amount specified was due for sheep sold, and alleged that after seller's agent delivered sheep to buyer, agent informed seller that agent had not received pay for sheep, and set forth reasons assigned by agent for failure to collect purchase price at time of delivery, and bill did not allege collusion between buyer and his agent, or that seller had any reason to disbelieve statements of his agent, or that seller had any reason to believe that agent was wrongfully or fraudulently concealing from him any facts in connection with transaction.
3. VENUE. Seller's agent not accounting for receipts held not necessary party to seller's action against buyer for balance due for sheep sold, as regards venue ( Code 1930, section 363).
Action was commenced in county in which seller's agent resided, but cause of action alleged against buyer was separate and distinct action in debt on specific contract, whereas cause of action against agent was action by principal against agent for breach of contract of employment in failing to account for funds received on principal's behalf, and the agent was not necessary party to cause of action against buyer.
APPEAL from chancery court of Simpson county. HON. T. PRICE DALE, Chancellor.
D.A. Burgin, of Columbus, and Lotterhos Travis, of Jackson, for appellants.
On the claim of jurisdiction for an accounting, it should not be entertained where the items both of debit and credit are few and for fixed sums and are easily within the power of a jury to consider.
Griffith Chancery Practice, page 26, note 15; Lesley v. Rosson, 39 Miss. 368.
The mere fact that an account, although of some length in debits and credits, is involved in a case, does not give jurisdiction in equity. The requirement is that the account must be complicated to that extent that it could not be well unravelled by a jury, or it must be mutual, or require discovery, or there must be some other equitable feature involved.
Bradley v. Howell, 134 So. 843.
A bill of complaint cannot be sustained as a bill for discovery where the bill of complaint shows that the complainant has full knowledge of the facts.
McKee v. Coffee, 58 Miss. 653.
The bill does not show that any fact or facts which complainant seeks to elicit from the defendants are exclusively within the knowledge of the defendants, nor does the bill show that the said disclosure is necessary in order to enable complainant to make out his case; these facts must appear in the bill in order to give the court jurisdiction to compel a discovery.
Boyd v. Swing, 38 Miss. 182.
A bill of discovery which will draw the whole controversy into equity, upon the equity of the discovery alone without the presence of any other equity must be (1) of a meritorious case for the enforcement of a civil or property right, (2) wherein the discovery is of material and relevant matters which are exclusively within the knowledge or within the power or custody of the defendant, and (3) which it is not within the reasonable reach of the complainant to obtain without the aid of the discovery prayed, and (4) which are such that it is practically indispensable to the ends of full and exact justice that the discovery be had. The bill must of course be against a party shown thereby to be liable to the complainant, and may not be maintained against a mere witness.
Griffith's Chancery Practice, section 429; 1 Story Equity Jurisprudence, page 91.
If it turn out that the allegations as to the discovery were a mere pretext to get the cause into chancery, it may be transferred even on the hearing provided that if the complainant be entitled to any material part of the discovery sought it will hold the case.
Griffith's Chancery Practice, section 431.
And all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found.
Section 363, Code of 1930.
Suits wholly in personam must be filed in the county where one of the necessary parties defendant resides. It is true that the statute again uses the permissive word "may" in that connection, but it is the uniform policy of judicial procedure in our state to bring all litigation in personam to the home of the defendant, and the statute must be construed in the light of that policy.
Griffith's Chancery Practice, section 155.
The complainant's bill shows that the alleged cause of action against Burgin Brothers, appellants, is a simple money demand, purely a law action, an action in debt on a specific contract, and that Burgin Brothers and Puckett are not jointly liable unto complaint under this contract. The alleged cause of action against Puckett, the other joint defendant, is an action by the principal, Smith, against his agent, Puckett, for an accounting of matters pertaining to his agency. Hence, there are two separate and entirely different causes of action. The bill, therefore, is multifarious by reason of the said misjoinder of parties defendant, and appellants' special demurrer should have been sustained.
Code of 1930, section 396.
A complainant cannot demand by the same bill several distinct matters against several defendants. They must have an interest in the same object in relation to which redress is sought. A bill is multifarious if it demand several matters of wholly separate and distinct natures either in behalf of unconnected complainants or against unconnected defendants. If a party be brought into a bill with respect to whom none of the other parties have any interest, and there will be no connected bearing upon the liability between the parties so brought in, the bill is multifarious and subject to demurrer.
Griffith's Chancery Practice, section 205.
Where the bill states separate and distinct causes of action against each of several defendants, a demurrer would be sustained on the ground of multifariousness.
Reese et al. v. Salmon, 99 So. 382. W.D. Hilton, of Mendenhall, for appellee.
Equity does have jurisdiction where the account is complicated to the extent that it cannot be unraveled by a jury, or where it is mutual, require discovery or some other equitable feature is involved.
Bradley v. Howell, 134 So. 843.
The rule that notice to an agent is notice to his principal is not applicable unless the notice has reference to business in which the agent is engaged under authority from the principal, and is pertinent to matters coming within that authority; and hence a principal is not affected with knowledge which the agent acquires while not acting in the course of his employment, or which relates to matters not within the scope of his authority, unless the agent actually communicates his information to the principal.
2 C.J., p. 863, par. 544.
The authority of an agent is limited exclusively to the authority originally given, and any other act of his, other than following his strict instructions, is not binding on the principal.
Eaton v. Hattiesburg Auto Sales Company, 151 Miss. 211, 117 So. 534; Cresap v. Furst Thomas, 141 Miss. 30, 105 So. 848; Philip-Gruner Lbr. Co. v. Algon Lbr. Co., 123 Miss. 157, 85 So. 191; Ismert-Hincke Milling Co. v. Natchez Baking Co., 124 Miss. 205, 86 So. 588; Oddfellow Benefit Association v. Smith, 101 Miss. 332, 58 So. 100.
The bill clearly shows that the facts sought from Puckett and Burgin Brothers are exclusively within their knowledge, and that such facts are necessary in order to enable complainant to make out his case against both jointly, and to ascertain which of the two are primarily liable to him.
A bill which states the facts within the knowledge of the complainant in a clear and definite manner and with as much material particularly as the circumstances of the case justly permit, is not objectionable in that the complete facts must be obtained by discovery from the defendant who alone has knowledge or means of knowledge concerning same, provided of course sufficient facts are stated to disclose the existence of the cause of action asserted, it being the rule that where a bill states enough to reveal a definite cause of action and shows that all the detailed information is in the exclusive possession of the defendant, and that a discovery is proper the bill will be sufficient.
Griffith's Chancery Practice, section 173.
It has been said broadly that it is not essential that the parties defendant shall each have the same interest in the litigation; that in furtherance of the policy of equity to avoid a multiplicity of suits they may be joined even where their interests are separate or different, provided only that in the matters involved they each have some connected interest. It is not necessary that a privity exist between each and some one of the others, so long as there is something connecting them all, or as it has sometimes been expressed, if there be a connection between the defendants as to the matter which constitutes the gravamen, or main point of the suit. And it is still better stated thus; several defendants may be joined where their interest and liability, though separate, flow from the same fountain, or radiate from the same center or have a common connecting link.
Griffith's Chancery Practice, par. 142; Roberts v. Burwell, 117 Miss. 469, 78 So. 357; Middleton v. Howell, 127 Miss. 893, 90 So. 725; Roberts v. Stark, 47 Miss. 257; Humphreys Co. v. Cashin, 101 So. 571.
When the facts as to which of two parties is liable on a cause of action stated are unknown, chancery has jurisdiction to compel an interpleader and to grant the complainant relief.
Board of Supervisors of Lauderdale Co. v. Alford, 65 Miss. 63.
Equity has jurisdiction where there are several defendants, who, together, are responsible for the entire fund sought to be recovered, where such liability is separate, and not joint, and the amount of the liability of each can only be known by a discovery from them.
Gay v. Edwards, 30 Miss. 218.
Where a consignee has no means of knowing whether a railroad company or a compress company has possession of his cotton, each claiming the other to be liable for it, he may, if the uncertainty were produced by their joint action, sue in equity, demanding discovery from each and recovery from either or both as the facts, when discovered, may justify.
Compress Co. v. Levy, 83 Miss. 774, 36 So. 281.
A case peculiarly for equity jurisdiction, because of the manifest confusion and uncertainty which the defendants themselves by their conduct in the matter have created, and because, as a corollary of this of the utter inadequacy of the remedy at law.
Enochs v. Miss. Bank Trust Co., 87 Miss. 325.
Where several persons are participants in a fraud on plaintiff, he may file a bill of discovery against all of the participants jointly although such persons have distinct interests and participate in different degrees in the fraud provided the fraud consisted of one connected series of acts.
Bomer Bros. v. Warren County, 103 Miss. 343.
There may be separate liability and separate judgments in equity proceedings if the joint action will save multiplicity of suits, or where the interest of all parties is from a common origin, or flows from the same center, or has a common connecting link.
Middleton v. Howell, 127 Miss. 893, 90 So. 725.
This is an appeal from a decree overruling a general and a special demurrer to an original bill of complaint filed in the chancery court of Simpson county, by the appellee, B.A. Smith, against the appellants, C.B. Burgin, M.G. Burgin, and T.A. Burgin, a partnership doing business under the firm name and style of Burgin Brothers, resident citizens of Lowndes county, Mississippi, and T.M. Puckett, a resident citizen of Simpson county, Mississippi.
The bill of complaint alleged that during the year 1928 and prior to July 16th of that year, the appellee had a contract with Burgin Brothers whereby he was to purchase cattle and sheep and sell them to the said Burgin Brothers on board freight cars at shipping points, at and for the price of five dollars and seventy-five cents per head of sheep; that it was necessary for the appellee to go into the market and purchase sheep for delivery to the appellants; that for this purpose, he employed the defendant T.M. Puckett to purchase said sheep and deliver them to the appellants at various shipping points in Mississippi accessible to the place of purchase; that it was understood and agreed between him and his agent and representative T.M. Puckett, and the said Burgin Brothers, that the purchase price of said sheep was to be paid to the said Puckett by Burgin Brothers at the shipping point before the bills of lading were issued to the said Burgin Brothers; and that under the terms of this agreement several cars of sheep were sold and delivered to appellants prior to July 16, 1928, for which settlement was made according to the terms of the contract.
The bill of complaint further charged that on July 16, 1928, the appellee, by his agent T.M. Puckett, delivered to the appellants two cars of sheep which were by the appellants consigned to Gatlin Brothers, at Franklin, Tennessee; that the sale price of these sheep amounted to one thousand three hundred thirty-nine dollars and seventy-five cents, which should have been paid to the said Puckett by the appellants before the bills of lading were issued and delivered to them; that after the sheep were delivered, the appellee made demand on his agent, Puckett, for the amount due for said sheep, and was advised by Puckett that he had not received payment from the appellants, but that the inspector for appellants secured possession of the sheep by stating that he would pay him after reaching Hattiesburg, Mississippi, that night; and that on reaching Hattiesburg, the inspector advised him that he would settle directly with the appellee whom he was to meet at Columbia, Mississippi, on the following day.
The bill further charged that upon this information furnished him by his agent, he took the matter up with the appellants, who refused to pay him, claiming that, for some reason, they did not owe him anything for said sheep; and that after applying the balance of certain money deposited by the appellants with the appellee to guarantee payment for the sheep sold under the contract between them, there was due the appellee on the two cars of sheep a balance of eight hundred thirty-nine dollars and seventy-five cents with interest.
The bill of complaint then charged that the appellee's agent, Puckett, was negligent and disobeyed the contractual agreement in so delivering the sheep without receiving pay therefor, and that the appellants violated their agreement in not paying for the said sheep before the same were shipped. The bill then sought an accounting against all the defendants, and demanded that the appellants disclose the method of payment, if they claimed to have paid the agent, Puckett, for said sheep, and that the defendant Puckett disclose in his answer all the facts of the transaction in order that the court might be able to ascertain who of the defendants were liable to the appellee for the two cars of sheep.
It was further alleged that one of the purposes of the bill was to demand an accounting by and between the said defendants, and to ascertain whether, as a matter of facts, the appellants had paid the defendant Puckett for the sheep, according to the terms of the contract, and which of the two defendants are primarily liable to the appellee, and further in order that all the equities between the said defendants and the appellee might be settled and adjusted. The prayer of the bill was for an accounting and for a discovery, and a decree for the amount found to be due against all or such of the defendants as may be found to be liable to the appellee.
The appellants Burgin Brothers filed an answer to the bill of complaint, and included therein a special and a general demurrer, the grounds of the special demurrer being: (1) "The bill of complaint shows on its face that the defendant T.M. Puckett is neither a necessary nor a proper party to the suit and that the defendants C.B. Burgin, M.G. Burgin, and T.A. Burgin are the only real defendants to the suit and that they are not subject to suit in Simpson county, Mississippi, being residents of Lowndes county, Mississippi." And (2) "the bill of complaint shows on its face that said defendants Burgin Brothers are sued in the wrong county and that the alleged cause of action against them and against T.M. Puckett are separate and distinct and without any relation whatsoever to each other. It further appears from the bill of complaint that said Puckett was joined as a defendant for no other purpose than to force said defendants, Burgin Brothers, to stand suit in a county far removed from their residence."
The general demurrer assigned as the grounds thereof the following: "(1) There is no equity on the face of the bill of complaint; (2) the bill of complaint does not show that the complainant is entitled to an accounting; (3) the bill of complaint does not show that the complainant is entitled to a discovery; and (4) the bill of complaint shows on its face that the complainant has a full, adequate and complete remedy at law." These demurrers were overruled, and an appeal was granted to settle the legal principles involved.
On the ground of an accounting, the bill of complaint presents no basis for a court of equity to take jurisdiction of the cause. The bill alleges the sale and delivery of a fixed number of sheep and cattle at a stated price, amounting in the aggregate to a fixed sum, upon which the balance of five hundred dollars on deposit with the appellee was credited, leaving a definite and fixed sum alleged to be due. This was a simple money demand, easily computable and definitely stated, and there could be no necessity for invoking the aid of a court of equity to state an account between the parties.
To sustain the jurisdiction of equity, the appellant relies principally on the ground of discovery attempted to be charged in the bill of complaint. The bill alleges that after the delivery of the sheep by the appellee's agent Puckett to the appellants, Puckett informed the appellee that he had not received pay for the sheep, and set forth the reasons assigned by Puckett for his failure to collect the purchase price at the time of delivery. The bill does not allege that there was any collusion between the appellants and appellee's agent, nor does it allege that the appellee had any reason to disbelieve the statements of his agent Puckett that the appellants had not paid him for the sheep, or that he had any reason to believe that his agent was wrongfully or fraudulently concealing from him any facts in connection with the transaction. From the fact that the bill of complaint asks for a discovery as to whether or not the appellants paid his agent, there is an implication of lack of knowledge of that fact; but this is in the face of the positive averments of the bill that the appellee's agent had informed him that he had not collected for the two cars of sheep, and had fully disclosed his reasons for failure to collect. In view of the averments of the bill that the agent had disclosed to the appellee the facts in reference to the transaction, it is unnecessary to decide whether, under the facts alleged, the principal was chargeable with knowledge of his agent Puckett. The case simply presents a money demand for the establishment of which the agent Puckett would be a valuable, if not a necessary, witness; but the averments of the bill of complaint present no basis for equitable jurisdiction on the ground of discovery. There being no other ground of equitable jurisdiction alleged, the general demurrer should have been sustained.
The bill of complaint does not state a joint cause of action against the defendants Burgin Brothers and Puckett, and does not set forth facts showing any privity whatever between them. The cause of action alleged against Burgin Brothers is a separate and distinct action in debt on a specific contract, while the cause of action against the defendant Puckett, if the bill can be construed as stating one against him, is an action by a principal against his agent for a breach of the contract of employment in failing to account for funds received on behalf of the principal. The causes of action attempted to be charged in the bill of complaint are separate and distinct causes of action against the defendants Burgin Brothers and Puckett, and to the cause of action against the defendants Burgin Brothers, the defendant Puckett was not a necessary party.
Under the provisions of section 363, Code 1930, fixing the venue of suits in chancery, suits wholly in personam must be filed in the county where one of the necessary parties defendant resides, and since it appears in the face of the bill that the causes of action alleged therein are separate and distinct, and that the defendant Puckett is not a necessary party to the cause of action against Burgin Brothers, the separate demurrer interposed by them challenging the venue of the action should have been sustained. Griffith's Chancery Practice, sections 155 and 156.
The decree of the court below will therefore be reversed, the general and special demurrers sustained, and the cause remanded.
Reversed and remanded.