161 Ill. 379 | Ill. | 1896
delivered the opinion of the court:
It is urged that a complete remedy at law exists, and by reason of the oath being waived to the answer there is no jurisdiction for discovery. It is a general rule that in matters of account courts of equity have a general jurisdiction where there are mutual accounts, and also where the accounts are on one side and a discovery is sought and is material to the relief prayed. (1 Story’s Eq. Jur. sec. 459.) Where an account is of a complex and intricate character, and where a fiduciary relation exists, a bill for accounting will lie. (Patten v. Patten, 75 Ill. 446; Craig v. McKinney, 72 id. 305; Thornton v. Thornton, 31 Gratt. 212; Clark v. Pierce, 52 Mich. 157; McKenzie v. Johnston, 4 Madd. 375.) Under the practice in chancery, at common law exceptions would not lie to an answer not under oath. It was to this rule the court had reference when Brown v. Mortgage Co. 110 Ill. 235, Mix v. People, 116 id. 265, and Goodwin v. Bishop, 145 id. 421, were decided. In none of those cases was the statute referred to or its provisions discussed. A brief discussion of the provisions of the statute is necessary in view of what appears on the face of this record.
A bill for discovery may be resorted to when the complainant has no other proof than that sought to be obtained from the defendant, and where a bill for discovery and other relief is filed a court of equity does not lose jurisdiction by reason of the waiver of the oath to the bill. Under the legislation of this State, by an act entitled “An act to regulate the practice of courts of chancery,” approved March 15, 1872, it is not permissible to waive the oath to the answer in a bill for discovery, only. By section 23 of the act above cited it is provided: “Every defendant shall answer fully all the allegations and interrogatories of the complainant, whether an answer on oath is waived or not, except such as are not required to be answered by reason of exceptions, plea or demurrer thereto allowed.” Section 21 provides'as follows: “When an answer shall be adjudged insufficient, the defendant shall file a further answer within such time as the court shall direct, and upon failure thereof the bill shall be taken as confessed. If such further answer shall be likewise adjudged insufficient, the defendant shall file a supplemental answer and pay all costs attendant thereon. If that shall be judged insufficient, the defendant may be proceeded against for a contempt, and a like proceeding be had thereon to enforce the order of the court as in other cases of contempt.”
Under this legislation the defendant is required to answer all allegations and interrogatories of the complainant, whether the answer on oath is waived or not, and the practice as it formerly existed, by which exceptions to an unsworn answer could not be filed, is no longer the rule in this State by reason of this statute. Exceptions may be filed to an answer whether sworn to or not, and an oath may be waived in a bill for discovery where other relief is asked. Where a bill for discovery, only, is filed and the oath waived, then it is in conflict with the provisions of section 20 of the act cited, and a demurrer thereto would be sustained for that reason, as that section provides, “when a bill, supplementary bill, bill of review, of reviver, or cross-bill, shall be filed in a court of chancery, other than for discovery only, the complainant may waive the necessity of an answer being made on the oath of the defendant.” The bill in this case sets forth the contracts and alleges the nature of the business, and shows the account would be of a most intricate character, and prays a discovery and accounting, and a decree for the profits derived by the defendant’s wrongful violation of his contract. And whilst plaintiff may waive the answer under oath, it is not deprived of calling the defendant as a witness, and having Mm sworn and examined as any other witness.
One occupying a fiduciary relation has not the right to violate his contract and obtain a profit or advantage to the prejudice of his principal, and retain it. The principal is entitled to the full benefit of whatever profit or advantage is derived by the agent in the course of the business of his principal. Profits obtained by an agent while acting in direct conflict with directions or the undertaking of such agent should inure to the benefit of the principal. The agent could not be allowed to reap the fruits of his wrongdoing; and if the profits were made in the course of the business the principal should have the benefit. Dodd v. Wakeman, 26 N. J. Eq. 484; Judevine v. Town of Hardwick, 49 Vt. 180; Glover v. Layton, 145 Ill. 92; Cottom v. Holliday, 59 id. 176.
If the averments of the bill are true, the defendant used his position of confidence and trust to engage in an enterprise that involved the same character of business as that of the complainant, and the" agent was enabled to use his position, by reason of his employment, to the prejudice of his employer. If the agent established a business of a similar character and derived large profits therefrom, the complainant would be entitled to relief. Therefore the circuit court and the Appellate Court for the First District each erred in sustaining the demurrer and dismissing the bill.
The decree of the circuit court of Cook county and the judgment of the Appellate Court for the First District are each reversed and the cause remanded.
Reversed and remanded.
