12 N.W.2d 377 | Mich. | 1943
The bill in this suit was filed to obtain a money decree for lumber sold to defendant. The suit was brought in the circuit court for the county of Jackson, in chancery. Defendant's place of business is in Ingham county and an action at law could not be brought against it in Jackson county. Defendant moved to dismiss the bill on the ground that the allegations therein stated an action, if any, at law and not one of equity jurisdiction. The motion was denied in the circuit court and an appeal therefrom was denied by this court but "without prejudice." This left the question of equity jurisdiction open for consideration on the record at the hearing of the case. The case has been heard in the circuit court and a money decree granted plaintiff. Defendant, having saved the question of jurisdiction, appeals and we now have the record upon the question of equity jurisdiction in the premises. Plaintiff's contention that the allegations in the bill must be given favorable consideration and governs the question of jurisdiction is, after hearing, no longer the test. The test now is whether, under the record, plaintiff had an adequate remedy at law.
It was held in Bourget v. Monroe,
"Damages are not recoverable in equity where no case for equitable relief is made out to which the damages would be applicable or subsidiary." *496
See, also, Schook v. Zimmerman,
It appears that one Jesse N. Baker, who was a director in defendant company, on his own account, purchased various tracts of standing timber, logged the same and sold the usable lumber in the logs to be scaled by defendant at an agreed price per thousand feet. Mr. Baker died March 4, 1938, and under probate proceedings his claim, if any, against defendant was vested in plaintiff and she brought this suit to obtain recovery of the sum claimed due. After the death of Mr. Baker plaintiff for some time carried on like business with defendant.
Plaintiff's money decree is based upon claimed admissions by defendant's officers in letters, by testimony at the hearing and the record books of the company.
There was no accounting necessary or had from plaintiff's standpoint. The fact that it was left to defendant to scale and tally the usable lumber did not create a trust in any sense of law or equity. Inspection by defendant of proposed tracts of standing timber, to be purchased by Mr. Baker, logged, and the usable lumber sold to defendant, did not create a joint adventure relationship. If plaintiff needed any discovery of books, papers and documents there was ample means for obtaining the same in an action at law. Court Rule No. 40 (1933), and it is no ground for equitable interference. Austin v. Socony Vacuum Oil Co.,
The suit was to recover a claimed debt arising out of contract. Recovery did not involve any employment of equitable principles or procedure depriving defendant of the right to be sued, if at all, in an action at law in Ingham county, with privilege of trial by jury. *497
The court of equity had no jurisdiction and the decree is reversed. As there can be no remand to the law side of the circuit court for the county of Jackson,* the bill is dismissed with costs to defendant.
BOYLES, C.J., and CHANDLER, NORTH, STARR, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred.
