| S.C. | Oct 9, 1869
The opinion of the Court was delivered by
This is £m appeal from a decree dismissing the bill of complaint. The bill alleges a verbal contract between complainant and the defendants to the original bill, to the effect that, in consideration that the complainant should, from time to time, as occasion might require', furnish defendants with means to pay the rent of their lands, with provisions to feed their employees, and money to pay the said employees, the said defendants would deliver to complainant the productions of their farm, to be by him, in his own name, sent off to market, sold, and so much of the proceeds applied as might be necessary to refund the advances made by complainant. It was also agreed, upon the same considerations, that defendants should manufacture turpentine barrels, to be delivered to a third party, the price of said barrels to be charged against the complainant, on account of his advances. This part of the contract appears to have grown out of certain arrangements existing between the complainant and such third party, and is not essential to an understanding of the case. The bill alleges a violation, on the part of the defendants, of this contract, and an indebtedness by them for advances made by the complainant, in accordance with his agreement; also, a shipment to market, by the defendants, of turpentine, part of the product to which the contract related, in denial and in fraud of the rights of the plaintiff, and prays a discovery and a specific performance of the contract. It also contains a prayer for general relief and for "an injunction.
The defendant, Joiner, answered, admitting a verbal contract with himself, irrespective of his co-defendant, but alleging it in terms somewhat different from those set forth by the complainant;
The complainant amended his bill, setting forth additional facts, to wit: That, with intent to hinder and defraud said complainant, as their creditor, and in fraud of his rights under the contract set forth in the original bill, the defendants • had made a fraudulent and colorable conveyance of property embraced within the original contract, to McCallister & Steele — charging McCallister & Steele with fraudulent complicity — and prayed a writ of subpoena against-them, and a decree.
The appellants set forth many grounds of appeal, which it will not be necessary to consider in detail, as the view taken of this case disposes of it upon more general grounds.
Under the aspect of the case presented by the original bill, it would be necessary for the complainant to establish a fiduciary relation, in the nature of a trust, either express or implied, as between himself and the original defendants, in order to warrant the interference of a Court of Equity with the course of the common law, as applicable to -the case.
As a bill of discovery alone, it cannot, independent of other equitable grounds of relief, be maintained. The right to examine the parties to an action as witnesses, conferred by statute, affords an adequate remedy at law for that class of cases in which a remedy was formerly allowed in equity, on the ground of the necessity of a discovery. In this State, the exclusion of Courts of Equity from jurisdiction in eases in which an adequate remedy is conferred at law rests on .the statute; (Eno vs. Calder, 14 Rich. Eq., 154: Dunkin, C. J.;) consequently a new remedy at law operates to destroy the. pre-existing remedies in equity allowed for the want of such legal remedy.
Nor pan the bill be maintained on the ground of specific, or part, performance. The latter doctrine is wholly inapplicable to the case, as the complainant’s difficulty does not arise out of the statute of frauds, but from the nature of his contract, and the-limited powers of a Court of Equity. .No authority exists for specifically enforcing, in equity, a contract of the character set forth in the pleadings as -the foundation of the complainant’s demand for a decree. It cannot be likened, with any success, to a bill for the specific delivery of chattels. The chattel property that was the subject of that exceedingly limited and exceptional jurisdiction, was
The element of value to which the complainant’s contract looked was commercial purely, and capable, therefore, of just ascertainment at law.
It is proper to remark that the complainant has not adopted the mode of dealing with the defendants that would secure, at common law, or under the statute, a legal lien on the property against w'hich he seeks relief. Can he claim an equity of a substantial value to him equal to that of a legal lien on the property ? This is what he, in effect, seeks.
As has been said, a fiduciary relation must be shown to exist between the complainant and the original defendants before such a result can be obtained. The contract warrants no such assumption. The complainant agreed to make certain advances, in order to secure the factorage of property to be derived from a specified venture. The profit to which he looked was commissions. His security was the covenant of the original defendants ; and the extent of his risk, in addition to the ordinary casualties of business, depended on the good faith of those defendants in performing their covenant. There was no community of profit and loss to characterize the transaction as a partnership. THe complainant’s advances were made upon the faith of the defendants’ agreement to consign the product of the business to him. The only trust affecting the advances made by complainant in the hands of defendants was, that they should belaid out in the production of certain goods, and this was done. The trust, such as it was, was fully executed, the only complaint being that the product of the business was not consigned, as the defendants contracted to do. This, at most, is a breach of contract, for which the only redress is at law.
The relations established by the contract involve nothing of a fiduciary nature from which a trust, express or implied, can arise useful to the complainant. The confidence reposed is in the nature of a commercial credit, and no relief can be afforded on this ground in equity.
The circumstance that the judgment debtor is insolvent, and that, without the aid of an injunction, the debt will be lost, is, in itself, insufficient to sustain the allegation that there is no adequate remedy at law.
The decree must be affirmed ; but without costs to the prevailing party.