Brown v. Corey, 191 Mass. 189

Brown v. Corey

191 Mass. 189 | Mass. | 1906

Morton, J.

In order to enable the plaintiff to maintain his bill it must appear from the allegations contained in it “ that there was a fiduciary relation between the parties ... or that the account is so complicated that it cannot be conveniently taken in an action at law.” Badger v. McNamara, 123 Mass. 117. The relation between the defendants and the plaintiff disclosed by the • bill is, it seems to us, the ordinary relation between a broker and his client or customer which, though it involves a certain amount of trust and confidence in the broker on the part of the customer, is not a fiduciary relation, but a relation as debtor and creditor. Chase v. Boston, 180 Mass. 458. The allegations that “ the plaintiff relied upon the knowledge and experience of the defendants in regard to buying and selling stocks . . . and employed the defendants as his brokers in order to avail himself of said peculiar knowledge and experience” add nothing jurisdictional.

The averments that “ the number of purchases and sales which the plaintiff requested the defendants to make on his account was very great ” and that “ owing to the number of said transactions, -it is impossible for the plaintiff to state with certainty how much the defendants now owe” but that a large amount is due him upon a proper accounting do not in form or substance allege that the accounts are so complicated that they cannot be conveniently adjusted in an action at law. In Badger v. McNamara, uli supra, and Ward v. Peck, 114 Mass. 121, where the facts alleged resembled those in the bill before us, it was held that the plaintiff was not entitled to relief. In Badger v. McNamara the cases of Bartlett v. Parks, 1 Cush. 82, and Hallett v. Cumston, 110 Mass. *19282, were distinguished on the ground that, in those cases, the accounts were to be settled on the same principles that they would be if the parties were partners. The bill cannot be maintained for discovery alone if that is not incidental to any relief which the court has the right to grant. Moreover as said by the court in Wilson v. Webber, 2 Gray, 558, 561, “ The main purpose of these provisions of the practice act,” referring to the provisions relating to interrogations, “ was to substitute, in place of the tedious, expensive and complex process of a bill of discovery on the equity side of the court, an easy, cheap and simple mode of interrogating an adverse party, as incident to and part of the proceedings in the cause in which the discovery was sought,” thus imparting, in theory at least, to the remedy at law almost if not quite the efficacy of a bill of discovery in equity. See Gunn v. New York, New Haven & Hartford Railroad, 171 Mass. 417.

Recree affirmed.