40 A.2d 311 | Md. | 1944
The appeal in this case is from an order of the Circuit Court for Prince George's County overruling a demurrer to the appellee's amended bill of complaint. It is contended that the cause of action is primarily a legal one, that a Court of equity is without jurisdiction to entertain the amended bill under the facts alleged, and that the Court below erred in its ruling.
The facts set out in the amended bill are: that the appellant is engaged in the business of mining, washing, delivering and selling sand and gravel in Prince George's County; that the appellant, for a valuable consideration, entered into an agreement with the appellee to pay the sum of 6 cents per ton for all sand and gravel mined, delivered or sold by it from any and all of certain described properties in Prince George's County; that the appellant agreed to keep all the records of its operations, and to issue statements and account to the appellee each month for the sand and gravel mined, delivered and sold for the previous month; that the appellee cannot ascertain the correct tonnage through its own efforts; that the appellant did issue statements and account for all sand and gravel mined, delivered and sold up to and including December 31, 1941, but has refused to do so since that date, although its operations have continued. The bill prays a discovery and accounting, a decree for all sums due from January 1, 1942, to December 31, 1943, and for other and further relief. The original bill was filed on March 2, 1944. *228
The appellant relies primarily upon the case of Becker v.Frederick W. Lipps Co.,
We think the Becker case is distinguishable from the case at bar. In the Becker case the action was for nonperformance of a contract to deliver merchandise, for the breach of which damages were sought, and the suit was not based upon the equitable grounds of mistake, accident, trust, accounting or the like. In the case at bar, the agreement was not one for the purchase and sale of merchandise; it was in the nature of a continuing royalty or leasing agreement, with an express undertaking to account each month during the life of the agreement to the Carozza Corporation, owner of the mining rights in the properties described. Thus, the relations between the parties were not those of buyer and seller, but were of a fiduciary character. For the purposes of this case it is not necessary to define the relationship more precisely.
In the case of Musch v. Underwood,
In the case of Anderson v. Watson,
In Goldsborough v. County Trust Co.,
In the case at bar there was an express promise to keep all records and account monthly. The bill is in the nature of a bill for specific performance of that obligation; and sufficiently alleges the necessity for equitable relief. Compare Union Pass.Ry. Co. v. Mayor, etc., of Baltimore,
It may also be observed that in the case at bar the agreement between the parties is of indefinite duration and has not been fully performed, raising the possibility that the appellee might find it necessary to bring successive actions at law. This furnishes an additional reason for equity to assume jurisdiction, in order to afford complete relief in a single case; and avoid a multiplicity of suits at law.
In County Com'rs of Frederick County v. City of Frederick,
We concur in the view of the Chancellor that the bill of complaint is not demurrable, but should be answered.
Order affirmed, with costs to appellee. *231