109 Ark. 171 | Ark. | 1913
(after stating the facts). In Loeb v. German National Bank, 88 Ark. 108, the motion to transfer alleged that “the defendants had been customers of the plaintiff for nearly four years; had continuously borrowed money from it, executing to plaintiff about seventy-five notes, ranging in amounts from $500 to $12,000; that the average amount borrowed, or renewed, each year amounted to about $20,000, or an aggregate of approximately $90,000; that during said period they had also endorsed notes at the bank for other parties to the amount possibly of from $65,000 to $75,000; that during the time they had deposited with said bank from time to time collateral notes ranging in amounts from fifteen to twenty thousand dollars; that at all times during said period there was an excess of collateral notes, in excess of the amounts defendants were indebted to said bank; that at various times during said period collaterals so deposited were realized upon by said bank, and the amounts collected thereon were applied to the payment of the various notes and interest executed by defendants ; that it is impossible for defendants to state, owing to- the large number of transactions between the parties, the calculations of interest of the various notes, the various off-sets and appropriations of collateral to the various notes, just what amount is now due, if any,- by said defendants upon the notes sued upon herein.”
In that case we said: “The transfer to equitywas properly denied. No equitable defense was pleaded in the answer, or set up in the motion to transfer. It is a mere invitation to have an accounting in order to ascertain whether or not the defendants have a defense. There is nothing set forth, either in the answer or the motion, bnt what conld be ascertained in a court of law without the interposition of equity.”
There was much stronger reason for transferring to equity in that case than there is in this, because iñ that case it was alleged that it was impossible1 for defendants, owing to the large number of transactions between the parties, to make an accurate statement of the amount due upon the notes sued upon, if any, by reason of the fact that the evidence upon which they relied was in possession of the opposite party. But here the pleadings and exhibits show that the parties to the contract, which was made exhibit, had an accurate guide in the contract itself for stating the account. There was no complication or difficulty in the,matter of accounting. The question at issue between the parties, as shown by their pleadings, and their exhibits, was as to whether or not the parties respectively had performed the obligations of the contract.
Coungel for petitioner, in their brief, state: “We know that in this case petitioner made up its statement from the counting, measuring, etc., according to the rule fixed by the contract from its different graders or as made by its different graders. We presume that is the way Purifoy made up his statement also. So it will be necessary for the parties, on the trial of this case, to bring their graders before the court, and let them show the court by their testimony, and by their original figures made and entered at the time the grading was done, and how, under the rule fixed by the contract, they determined the grade and class and therefore the price of the staves.”
Counsel are correct in their conclusion, but it only shows that the question at issue between the parties was not so much a matter of account as it was whether the parties had carried out the terms of the contract, that is, as to whether the plaintiff had delivered the staves of the kind, grade, number and price alleged in the complaint. And whether or not, on the other branch of the case, the defendant had breached its contract by failing to furnish plaintiff the bucker specified therein according to the terms of the contract, and whether plaintiff had furnished the staves that he alleged he had furnished to be’ bucked. In other words, whether the defendant had breached its contract in that particular and damaged plaintiff in the sum of $430 as alleged.
There is certainly in all this no question of long, complicated, mutual, running accounts, as petitioner, the defendant below, alleged in its motion to transfer. It was peculiarly within the province of a jury to determine the questions raised by the pleadings on that issue, and there is nothing to impeach the statement made by the respondent, that counsel for petitioner on the argument of the motion to transfer virtually admitted that all staves had been disposed of by defendant in the market, and no grading or measuring thereof could be had by any order of the chancery court. Then there is nothing pertaining to the issue as to whether plaintiff had furnished the staves according to the terms of the contract, and whether the defendant had paid him for the same, that was properly a matter within the jurisdiction of the chancery court. But, on the contrary, it was peculiarly a question for the law court and for the jury, under the evidence that might be adduced affecting that issue.
There is nothing, also, to impeach the statements in the response in regard to the accounting, that the admissions made as to the items of the account being correct, except three or four, reduced this issue to a very simple proposition or question of fact to be determined by the evidence pro and con, without complication. The same with reference to the items of expense incurred by the defendant (petitioner) after it took possession of the staves, in preparing the same for market; that plaintiff admitted that each of these items had been expended by the defendant, the petitioner, but simply denied that any of them were chargeable to plaintiff’s account. This presented also a simple question of law, depending upon the construction of the contract, and was proper for the law court to pass upon.
We are of the opinion that the chancery court was correct in its conclusion that petitioner had a full, complete and adequate remedy at law, and that it was correct in not assuming jurisdiction to try the cause and in transferring the same to the law court.
A mere matter of accounting is not sufficient to give equity jurisdiction. The case must he one where, on account of the complicated nature of the accounts, it would be most difficult, for a jury to determine the issues of fact involved before the chancery court should take jurisdiction. Where it is merely a matter of proof and calculation, with no special intricacies involved, hut a simple suit on contract, the chancery court will not take jurisdiction. Terrell v. Southern Ry. Co., 20 Am. & Eng. Ann. Cases, 901; Randolph v. Tandy, 98 Fed. Rep. 939; Amr. Spirits Mfg. Co. v. Easton, 120 Fed. 440.
As was said by Chief Justice Marshall, in Fowle v. Lawrason, 8 L. Ed. U. S. Sup. Ct., p. 495: “It can not he admitted that a court of chancery may take cognizance of every * * * contract expressed or implied consisting of various items where definite sums of money have become due, and different payments have been made. * * * It may he safely affirmed that a court of chancery can not draw to itself every action between individuals in which an account is to he adjusted.”
The petition for mandamus is therefore denied.
