150 Tenn. 369 | Tenn. | 1924
delivered the opinion of the Court.
The bill in this cause was brought by complainant as trustee for W. C. Knight & Co., bankrupt, to recover the sum of $200 advanced by the bankrupt firm to the defendant on his draft against a cotton shipment, giving certain credits reducing the net claim to $185.59. The answer of the defendant admits the drawing of the draft and the receipt of the money, but denies the indebtedness; setting up that the money was paid to the defendant under an agreement made with the agent of the bankrupt on account of cotton shipments made contemporaneously; that the cotton was shipped for immediate or early sale at prices then prevailing*, which would have yielded more than the sum advanced; and that the loss in the sale of the cotton, made a year and a half • after the shipment, was because of the failure and refusal of the bankrupt to sell the cotton according to agreement and instructions. The answer further sets up that the bankrupt represented by the complainant is liable to him for a sum in excess of the $200 paid to him, but no recovery is sought and no affirma-
A jury was demanded and impaneled, and issues were submitted on behalf of both parties, but the chancellor, apparently being of opinion that the defense could not be made in this proceeding by way of answer without a cross-bill, refused to submit the issues to -the jury and rendered a decree in accordance with the prayer of the bill. The court of civil appeals was of opinion that the issues should have been submitted to a jury, and from its decree the original defendant has brought the case here by petition for certiorari. The determinative question is one of pleading; it being earnestly insisted that the defense is in the nature of a set-off and cannot be made without a cross-bill, or an answer in the nature of a cross-bill, praying for affirmative relief.
The rule as laid down by Mr. Gibson, par. 730, is to the effect that, if affirmative relief is sought by the defendant ‘in the allowance of a set-off,” or otherwise, a cross-bill must be filed, and authorities are cited sustaining this general statement. However, the insistence made for the defendant below in this cause is that no “affirmative relief” is sought; that, while the answer sets up facts on which, if established, the defendant would be entitled to recover a sum from the complainant, no such relief is prayed for, it being suggested that the insolvency of the party represented by the complainant as trustee rendered such a claim useless. In section 12 of paragraph 730, supra, Mr. Gibson says that, “where the bill seeks a recovery on a deed, note, or other written instrument executed by the defendant,
Among the exceptions to the general rule, requiring a cross-bill as a foundation for affirmative relief, are suits for accounting. This exception has been specifically recognized in this State. In Allen v. Allen, 11 Heisk, 387, approved in Polk et al. v. Mitchell et al., 85 Tenn., 643, 4 S. W., 224, Mr. Justice McFarland said:
‘ ‘ The complainant, having prayed for an account, must abide by it. In such case no cross-bill is necessary.”
’ While the bill in this case does not set out the facts and circumstances of the transaction out of which the claim sued on grew, it is apparent that an accounting is involved in the proceeding; the complainant having
If the original bill in this cause had specifically prayed for' an accounting, the application of this exception would, of course, have been clear,' but, looking to the substance of the controversy presented by the pleadings, we think the same result follows.
Nor is the case of Kittrell v. Insurance Co., 1 Tenn. Civ. App., 253, in conflict with the conclusion reached herein, when the difference in the facts is considered. The insurance company in that case sought to recover upon a note which had been executed to it by the complainant and set up this claim in an answer to a bill brought by Kittrell to recover on a fire loss. This was
It is earnestly insisted that, on the facts developed by the proof, the contention of the defendant has not been sustained, hut it cannot he contended that there is no material evidence to sustain the defendant’s contention, and in this state of the record the defendant .was entitled to a trial by a jury, and the petition must be dismissed, and the decree of the court of civil appeals affirmed.