115 Tenn. 393 | Tenn. | 1905
delivered the opinion of the Court.
This case was before us at the last term. The opinion then delivered appears in fifth Cátes, at page 657. At the former hearing the case was remanded to the chancery court for an account and for other purposes. It is now before us again on appeal from the action of the court of chancery appeals in respect of the disposition which it made of the report of the master, and of the decree of the chancellor thereon and in respect of an application made in the chancery court for the filing of a
We shall not take up these questions in the order just stated, but in what seems to us the most convenient sequence.
1. The defendant filed in the court below a supplemental bill in the nature of a bill of review, for the purpose of putting in issue new matter discovered after the filing of the answer, and after the passing of the decree of reference and while the latter decree was in process of execution before the master. This bill shows that due diligence was exercised on the part of the defendant and that the matter could not reasonably have been ascertained prior to the time at which it was discovered. Assuming the evidence to have been material and determinative, the question arises as to the proper practice in such cases. We are not aware that this precise question has ever before been determinated in this State. The cases are numerous wherein final decisions have been reviewed under bills of review. But we know of no case in our reports where the question has arisen in respect of an interlocutory decree.
The following authorities indicate the true conclusion :
In Laidley v. Merrifield, 7 Leigh (Va.), 346, 353-4, it is said:
“A bill of review strictly speaking, is a proceeding to correct a final decree in the same court, for error apparent on the face of the decree or on account of new evi-
The new matter must be brought to the attention of the court as soon as discovered. If, after discovering such matter, the party allow the case to go to a final decree, he can not use the new matter. Story’s Equity Pl., sec. 423.
In Baker v. Whiting, it is said:
“To compel the petitioner to wait until a final decree and then to apply for a bill of review, or a bill in the nature of a bill of review would not only occasion great delay, but alsoi great expense to the parties, which ought, if practicable, to be avoided. 1 Story, 218; Fed. Cases, No. 786. See also Jenkins v. Eldredge, 3 Story, 299-307; 13 Fed. Cases, p. 504, case 7267.
In the last cited case, Judge Story used this language :
In his work on Equity Pleadings, Judge Story says:
“It has been established that matter discovered after a decree has been made, although not capable of being used as evidence of anything which was previously in issue in the case, but constituting an entirely new issue may well be the subject of a bill of review.” Story’s Equity Pl. sec. 416.
Such a supplemental bill may be filed not only by a complainant, but also by a defendant. In the work just referred to, it is said:
“Hitherto we have chiefly considered supplemental bills on the part of the plaintiff; but they may also be brought in behalf of the defendant in the suit. Where the matter is newly discovered evidence on the part of the defendant after the cause is at issue, or after the publication is passed or even after a hearing or decree, the defendant may by petition to file a supplemental bill, obtain relief.” Id., sec. 337c.
The subject was recently gone over to some eootemt in an opinion by Judge Lurton in the case of Deitch v.
Such a bill, “if maintainable at all, should properly in its prayer, be for leave to file a supplemental bill to bring forward the new evidence, and for a rehearing of the cause at the time when the supplemental bill should also be ready for hearing.” Jenkins v. Eldredge, supra, p. 305.
In Daniels Chy. Pl. and Pr. it is said:
“A bill of this description can not be filed without leave of the court having first been granted. In order to obtain permission for this purpose, a petition must be presented supported by an affidavit to show- that the new
2. From what has just been said, it is apparent that, nothing else appearing, tbe chancellor should have allowed tbe filing of tbe supplemental bill offered by tbe defendant, and likewise that tbe court of chancery appeals, but for a fact to be presently stated, acted correctly in granting tbe permission.
In order to properly understand tbe fact on which the question turns, it should be stated that tbe complainant and tbe defendant bad mutually entered into a written contract wherein the defendant agreed to purchase from tbe complainant 5,000 stoves, and tbe complainant, among other things, agreed not to sell any stoves during tbe running of tbe contract, in tbe State of Georgia It was alleged in tbe supplemental bill filed by tbe defendant that after tbe decree of reference bad been awarded and tbe terms bad adjourned at which that decree was rendered, tbe defendant bad, by tbe exercise of great diligence, discovered a secret arrangement between tbe complainant and tbe firm of Bondurant & Company, of Athens, Georgia, whereby tbe complainant bad sold to this firm a large number of stoves. It was alleged in tbe supplemental ball that tbe defendant bad been greatly
In the original .answer one of the defenses set up by the Can Company was that the stoves manufactured by the complainant were so defective that it could not handle them. The answer contained upon that subject, the following: ,
“It is true that this defendant did order of the complainant 1191 stoves at the prices named in the said Exhibit A, and that the complanant did ship to this defendant 1191 stoves, and at the time of shipment collected from this defendant the contract price therefor, and that the defendant has not ordered nor accepted from the complainant any more stoves than those thus shipped and paid for; but said stoves so shipped and paid for were not such stoves as were required by the terms of the contract and were not merchantable stoves, and by reason of defective material and workmanship were totally unsuited for the purposes for which they were sold, and by reason of said defective material and workmanship, and said unmerchantability the defendant was unable to sell any more of said stoves than those shipped to it as aforesaid, although it used its best efforts so to do.
“The defendant was damaged to the extent of $5,000 through loss of trade and customers, and in loss of its business reputation, and in the time of its servants and
The supplemental bill is based upon the ground that the complainant therein, the defendant to the original bill, had sustained loss by reason of the fact that the complainant pending the running of the contract, had sold between 1,000 and 1,500 stoves to Bondurant & Co. This seems to be entirely in conflict with the defense set up in the original answer that the goods were worthless, and that the defendant had suffered loss in selling such as he had sold, and great injury to his credit and reputation in attempting to sell others.
On the ground of this incongruity between the two defenses, we do not think that the supplemental bill should have been permitted to be filed; and that the court of chancery.appeals erred in giving such permission.
3. We are of opinion that the court of chancery appeals acted correctly in assessing the damages at $1182.38 with interest from August 1, 1902. We deem it unnecessary to go into the particulars of this matter, being entirely content with the view taken of that branch of the case in the opinion of the court of chancery appeals.
A decree will be entered here in favor of the complainant for $1182.38, with interest from August 1,1902, with costs. '