117 Va. 546 | Va. | 1915
delivered the opinion of the court.
The Oglesby Company, Inc., was for a number of years prior to May 24, 1911, engaged in business in Lynchburg as wholesale dealers in white goods, notions, etc. On that day it entered into a contract with the Ould Company, Inc., engaged in a similar business, by which the Oglesby Company sold to the Ould Company its entire stock of mer
Upon the signing of the contract the Oglesby Company proceeded to turn over to the defendant its house and contents, and by June 1, 1911, had transferred to it all the property provided for in the contract, and the Ould Com
“Gentlemen:
“Because you have broken your contract with us dated May 24, 1911, and have failed and refused to comply therewith, and your representations and .guarantees of material facts as therein contained turn out to have been unfounded, we hereby notify you that we do not consider our-solves under any obligation by virtue of that contract, but on the contrary we do and shall regard and treat the contract as no longer of any binding force or effect.”
To this note the Oglesby Company replied, through its president, acknowledging receipt of the letter of the Ould Company of July 8, and goes on to say: “I am availing myself of the first opportunity to ask you to specify .in what way the Oglesby Company has failed or refused to comply with its contract. I ask for this information because this
No reply was made to this letter, and without further notice to the Oglesby Company the Ould Company abandoned the assets, so far as it had not disposed of them, and the business taken over under the contract, though it had been in control and possession of them for more than a month, and during the whole of that time had exercised over them the authority of absolute and unconditional ownership. In the conduct of the business it had canceled orders placed by the Oglesby Company amounting to thousands of dollars. It had transferred to itself many orders taken by the Oglesby Company’s salesmen; filling them with goods from its own house. It had received and shipped out goods daily, and controlled and directed the fifteen salesmen taken over under the contract, traveling in the various States of the South, and through some of them had sold and was selling goods from its own store. It had collected over $37,000 of accounts transferred to it under the contract, and applied the proceeds as it saw fit. Nevertheless, the Ould. Company repudiated its contract and abandoned the remaining assets purchased thereunder, amounting to not less than $150,000 of merchandise, and $160,000 of accounts and bills receivable, leaving them without custody or direction, and the business taken over without a head and in a state of disruption and disorganization.
Being unable by negotiation to reach a satisfactory conclusion, the Oglesby Company brought a suit in chancery on the 17th day of July, 1911, against the Ould Company, and at the first rule day in August of that year filed its bill and exhibits therewith.
The contract between the parties, which'was filed as an exhibit, and the averments made in the bill, of which we have given a very inadequate synopsis in the foregoing statement, disclose a situation so complicated as to our
To this bill the Ould Company filed its demurrer, in which it states several grounds, but we shall only consider that which asserts that a court of equity is without jurisdiction because the complainant has a plain, adequate and complete remedy at law.
In Tillar v. Cook, 77 Va. 477, this court said: “The jurisdiction of courts of equity in matters of account is among the most comprehensive they have assumed. They have concurrent jurisdiction therein with courts of law, but the difficulty of proceeding in the latter, and the convenience of proceeding in the former, where a discovery may be had on the defendant’s oath, where a multiplicity of suits will be avoided, and where fraud, accident or mistake is connected with the subject, causes them to be most commonly resorted to.”
But, as we shall see in the course of further examination of the law upon this subject, the jurisdiction over matters of account does not depend upon the existence of any independent source of equity jurisdiction.
In Penn v. Ingles, 82 Va. 65, it is said, that “Equity hath jurisdiction in matters of complicated accounts, especially those involving equitable claims or trusts.”
In Beggs v. Edison Elec. Light, &c. Co., 96 Ala. 295, 11 So. Rep. 381, 38 Am. St. Rep. 94, the Supreme Court of Alabama said: “Courts of equity have for a long time exercised a general jurisdiction in cases of mutual accounts founded in privity upon the ground of the inadequacy of the remedy afforded by the common law; and this equitable interposition has been extended until equity
In Ely v. Crane, 37 N. J. Eq. 157, it is said: “When concurrent jurisdiction exists in matters of account, equity will not withdraw the litigation from a common law court, unless it clearly appears that such a course is necessary, in order that complete justice may be done. But it is not necessary that the case should involve an equitable element to warrant equity in assuming exclusive jurisdiction. If the accounts are so intricate or complicated, that they cannot be examined and tried at nisi prius with the care and deliberation necessary to insure an accurate result, equity may take jurisdiction, though an action at law was pending when the suit in equity was brought.”
In Kirby v. Lake Shore, &c. R. Co., 120 U. S. 130, 7 Sup. Ct. 430, 30 L. Ed. 569, Mr. Justice Harlan said: “The case made by the plaintiff is clearly one of which a court of equity may take cognizance. The complicated nature of the accounts between the parties constitutes itself a sufficient ground for going into equity. It would have been difficult, if not impossible, for a jury to unravel the numerous transactions involved in the settlements between the parties, and reach a satisfactory conclusion as to the amount of drawbacks to which Alexander & Co. were en
In O’Connor v. Spaight, 1 Schoales & LeFroy 305, the Lord High Chancellor of Ireland said: “The ground on which I think that this is a proper case for equity is that the account has become so complicated that a court of law would be incompetent to examine it upon a trial at nisi prius, with all necessary accuracy, and it could appear only from the result of the account that the rent was not due. This is a principle on which courts of equity constantly act by taking cognizance of matters, which, though cognizable at law, are yet so involved with a complex account that it cannot properly be taken at law, and until the result of the account, the justice of the case cannot appear. Matter of account may indeed be made the subject of an action, but an account of this sort is not a proper subject for this mode of. proceeding: ,the old mode of proceeding upon the writ of account shows it; the only judgment was that the party ‘should account,’ and then the account was taken by the auditor; the court never went into it.”
In 1 Story’s Eq. Jur., at section 450, it is said: “There cannot be any real doubt that the remedy in equity in cases of account is generally more complete and adequate than it is or can be at law.” And continuing the same subject in section 451 that author says: “This has accordingly been considered in modern times as the true foundation of the jurisdiction. Mr. Justice Blackstone has indeed placed it upon the sole ground of the right of courts of equity to compel a discovery. ‘For want,’ said he, ‘of this discovery at law, the courts of equity have acquired a concurrent jurisdiction with every other court in matters of account.’
In 2 Pomeroy’s Equitable Kemedies, sec. 930, it is said:
“Although courts of equity have refused to entertain jurisdiction of suits for accounting in cases where the items were merely very numerous, they have interposed in many others for the sole reason that the accounts involved were extremely complicated, and even where such accounts were not mutual but were all on one side. It is important then to determine, if possible, what degree of complication will warrant the interposition of equity. The rule became established in England that equity would step in whenever the account was so complicated that a court of law would be incompetent to examine it at nisi prius with the necessary accuracy, but under the present practice in England, as in New York, matters of account may be referred to officers or referees, so that this rule can now hardly be followed in those jurisdictions. Various tests have been laid down, but the facts of each particular case should govern the court in the exercise of its discretion, and the true principle would seem to be that whenever it is doubtful whether adequate relief could be obtained at law, equity should entertain jurisdiction.”
The synopsis which we undertook at the beginning of this opinion to give of the case made by the plaintiff in its bill and exhibits, is wholly insufficient to convey a just idea of the utter inadequacy of the remedy at law. As was said in Beggs v. Edison Elec. &c. Co., supra, where the accounts to be examined are on one side only, “the allegations of
In Shepard v. Brown, 4 Giffard’s Rep., p. 208, the court said, that “On questions of account, courts of equity and courts of law possess concurrent jurisdiction, and the decision as to the proper tribunal must be governed by considerations of convenience.”
In Taff Vale Ry. Co. v. Nixon, 1 H. L. Cas. 109, it is held, that “although the case against the company consisted of matters cognizable at law, yet as there were complicated accounts between them and the other parties respectively, a court of equity was more competent to take them, and to dispose of the whole case, than a court of law, and the bill was sustained accordingly.”
Miller v. Wills, 95 Va. 337, 28 S. E. 337, was a case not of account but of trespass, and Judge Riely delivering the opinion of this court said: “Although a court of equity will not, as a general rule, interpose to prevent a mere trespass, yet if the act done or threatened would be destructive of the substance of the estate, or if repeated acts of wrong are done or threatened, or the injury is or would be irreparable—in fine, whenever the remedy at law is or would be inadequate, a court of equity will enjoin the perpetration of the wrong, and prevent the injury.”
The principle which we have undertaken to illustrate is not that the court of law has not jurisdiction in such a case to afford a remedy, but that the remedy afforded at law is not as full, adequate and complete as that given in equity. The; text-writers and adjudicated cases which we have examined show how wide is the scope of equity jurisdiction in such cases, and while we have found none precisely in point, all we think tend to illustrate the general proposition. Whether the authorities cited refer to mutual accounts, to long and intricate accounts, to repeated and aggravated trespass, or to the investigation of a contract embracing a
It is to be regretted that the bill and exhibits filed with it in this case are so voluminous as to render it undesirable to report them in full. If it were done there could be little room for doubt that the case before us is one for the exercise of equitable jurisdiction in order to do justice between the parties.
We are of opinion that the decree of the circuit court must be reversed and the cause remanded for further proceedings to be had therein.
Reversed.