57 F. 531 | 7th Cir. | 1893
The bill in this case was dismissed for want of equity. Its object was to restrain the collection of a judgment at law, rendered in the court below, to cancel for fraud an agreement of settlement, upon which the judgment was based, and to obtain an accounting. The averments, in substance, are: That the complainant, Edmanson, had been engaged in buying and selling oysters in Chicago, at wholesale and retail, and had had the respondent, Best, in his employ as bookkeeper, cashier, and manager, in general control, entitled to receive in compensation for his services a stipulated sum per week and a percentage of the net profits of the business;, that on July 9th, 1888, by means of false statements in respect to the amount of uncollectible claims, representing them as amounting to not more than $300, when.in fact they amounted to $3,000 or more, the respondent procured the complainant to execute an agreement which, omitting date and signatures, is of the following tenor:
“It is hereby agreed between Geo. Edmanson and John L. Best that the following settlement is to day made, viz.: That John L. Best’s balance to his credit and due him on July T, 1S88, is five thousand eight hundred and forty-eight dollars and seventy-nine cents, ($5,848.79,) and is correct, and is so considered by both parties to this agreement; any difference arising from former agreements is fully settled by this; and in consideration that Geo. Edmanson allows John L. Best percentage of profits, in addition to salary as agreed upon, to stand as credited on Geo. Edmanson’s books, and will not charge back to John L. Best Ms percentage of loss as shown by balance sheet from January 1, 1888, to April 21, 1888, and that George Edmanson also hereby agrees not to charge back any percentage of bad debts to John L. Best. In consideration of which John L. Best agrees to waive Ms right to back salary, interest on money to Ms credit from time to time, and also to make no claim on George Edmanson for keep of George Edmanson’s horses and cows, kept for his private use, the expense of wMch was charged up to bam account,’ and affected the profits of the business to the extent of said expense;”
The answer sets up two defenses: First, the contract of settlement, which, it is alleged, was fairly made; and, second, the judgment at law, by which, it is claimed, the matter now sought to he disputed was adjudicated, — it being- alleged that the evidence offered by the parties was substantially the same as that adduced before the master in this case, that it was received and considered by the court, and judgment given as stated.
The complainant replied 'in the usual form, and there was a reference to the master to take the evidence and report upon the issues. In his report the master, though he says he' in no manner endeavored to enter into a full accounting between the parties, in fact made up a statement of account between them by which it appeared that the amount named in the settlement agreement as due the respondent was too large by $2,001.22; hut, treating that as a partial want of consideration for the agreement, he reported that “the proof, neither in ibis case nor in the case at law, made out the defense of fraud or circumvention;” that the same evidence, substantially, was adduced in the law case upon the question whether the settlement was procured by .fraud, as has been offered in this case; and that, in the opinion of the master, the judgment at law is conclusive upon that question.
Though it was competent and necessary for the master to inquire into the accounts and books of Edmanson in order to determine whether or not the contract of settlement was procured by means of false representations in respect to those hooks and accounts, it was no part of his duty to si,ate an account between the parties, and especially an incomplete one, which ignored the basis upon which the contract of settlement by its terms appeared to have been made; and the court committed no error in sustaining an exception to that part of the report.
It is not now an open question whether the settlement between these parties was fair, or was brought about by false and deceitful means. We agree with the court below that the question was lawfully tried and determined in the case at law and is not open to reconsideration by a court of equity. Though the declaration in
It is further insisted that the bill should be treated as a petition for a new trial, filed within time, under section 987, Rev. St. U. S. The bill manifestly was not framed upon that theory, and is defective because it shows no ground for a new trial which was not available, or which the complainant was prevented by fraud or accident from presenting, as a defense in the case at law. Story, Eq. Jnr. §§ 887, 1574, and notes.
The decree below should be affirmed, and it is so ordered.