60 So. 133 | Miss. | 1912
delivered the opinion of the court.
Appellee filed his' bill of complaint in the chancery court of Warren county against appellant to enforce payment of a balance claimed to be due complainant out of profits on a tontine policy, which it was alleged consisted of “the accumulated surplus in cash to be apportioned to complainant under said contract.” It is further averred that complainant was entitled to receive on the completion of his tontine period, as his portion of the accumulated surplus, a sum in excess of twelve hundred and sixty-two dollars and thirty-one cents; that he has no means of knowing the exact amount, but that the exact amount was known to defendant and can be shown by its books, and. complainant is entitled “to a full, accurate, and detailed showing from defendant and to have an accounting of ‘its said trust and agency;’ ” that at the completion of his tontine period defendant falsely represented to him that only four hundred and fifty-three dollars and thirty cents was due to him; that complainant, relying on said statement as true, accepted such sum in payment, under protest, being misled and fraudulently induced thereto by defendant, and in ignorance of the true sum due. To this bill of complaint a demurrer was interposed which was overruled, and an appeal was granted to settle the principles of law involved in the case.
We deem it unnecessary to decide whether the bill was for discovery and relief, or simply for an accounting, because in the view taken by us it is immaterial whether the bill be considered the one or the other. It will be
The right to reopen the settlement' had between appellant and appellee and to have an accounting, or discovery, is predicated upon the charge of fraud. The bill does not •set out any facts or circumstances which go to make up the alleged fraud, but the court is asked to decree that the defendant was guilty of misrepresentation and fraudulent practices without a single concrete fact being alleged upon which the court could base its decree. The simple charge of fraud or untruthfulness may raise an issue to be settled by the wager of battle, but in a court of equity it is necessary to state something more than the conclusions of the pleader; mere epithets are not sufficient, and the defendant is not required to deny or explain. If, as complainant alleges the payment to him was inequitable and unfair, he must have been in possession of some facts, or was able to relate some circumstances, which would justify the court in reopening the settlement. True, he says he is so informed and believes, and so represents the facts to be; but this, at last, means only that his informer told him merely that he had been defrauded, or put him in possession of some facts leading to this conclusion, and which he should have stated to the court for its consideration and judgment.
This court has clearly stated the rule where fraud is relied on as a basis of relief as follows: “No principle of equity jurisprudence is more firmly established than that, where fraud is relied on as a basis of relief sought from a chancery court, the facts on which the charge of
Coming now to the consideration of the other questions involved, we are of the opinion that in the interpretation of this contract the decisions of the New York courts should be followed. This rule the Supreme Court of the United States announced for its guidance in cases involving similar questions as are presented in this case. Equitable Life v. Brown, 213 U. S. 25, 29 Sup. Ct. 404, 53 L. Ed. 682.
The complainant below also predicated his right to a discovery or accounting upon the theory that the relations between the assured and insurer were of a fiduciary character, and that the insurance company held the accumulated, profits as trustee for the policy holders.
The supreme court of New York, in response to a like allegation in a bill involving the construction of a policy similar to the one in the instant case, said: “He claims now to maintain the action and to have the right to an accounting upon the grounds: (1) That the relation between the plaintiff and defendant is not one solely of
The Supreme Court of the United States followed the New York courts, saying: “They lay no foundation for the jurisdiction of a court of equity in such a case, unless it appears that the relation between the policy holder and the defendant is that the latter is the trustee of the former by reason of the trust relation between them resulting from the insurance policy. The complainant’s contention, as above stated, that there is such a trust in the fund mentioned, has never been regarded as the law in the state of-New York, nor anywhere else so far as any case has been cited on the subject.” Equitable Life v. Brown, 109 U. S. 25, 29 Sup. Ct. 404, 53 L. Ed. 682.
We think these cases settle the question of trusteeship, and will be adopted as the correct interpretation of the contract to be construed in this case.
It is insisted that this court in the case of Clark v. Equitable Society, 76 Miss. 22, 23 South. 453, has settled the principles of this case in favor of appellee; while appellant contends that the doctrine announced there is unsound and should be overruled should that case again come to this court. It is also said that the Clark case is not this case, to which statement we agree. It was held
The bill of complaint failing to set out any facts from which the court can infer fraud, the demurrer should for this reason have been sustained. Decree here reversing the decree of the chancellor, sustaining the demurrer, and dismissing the bill.
Decree reversed, and bill dismissed.