95 Tenn. 373 | Tenn. | 1895
On the eleventh day of March, 1892, John Toomey sold a sawmill and some other personal property to Atyoe Bros. & Co., at the price of $1,500. The purchasers paid $500 in cash, and gave their note to the seller for $1,000 due six months after date. The parties, on the same day, executed a written paper, wherein the fact and terms of the sale, together with some other matters, were
Atyoe Bros. & Co. answered the bill, saying that it was never contemplated that they should pay the note otherwise than by sawing the logs of complain■ant into lumber at the price stipulated in their - written agreement; that complainant had not delivered
Toomey answered the cross bill, admitting that he had delivered less than 200,000 feet of logs, giving what he deemed a sufficient excuse, under the contract, for his failure to deliver more, and denying that Atyoe Bros. & Co. had suffered any damage, or were entitled to any recovery against him, by reason of that failure. Upon these pleadings and proof the cause was finally heard and determined.
The final decree is as follows: “In this cause a jury having been demanded and granted by the Court to hear and determine the issues joined in the pleadings, thereupon the parties, in open Court, waived the actual presence of the jury, and agreed that the case might be heard before the Chancellor, sitting by consent as a jury, and [that] his decision and answer to the issues in the pleadings, have all the weight and effect of the verdict of a jury; and, thereupon,
On appeal of Atyoe Bros. & Co., the Court of Chancery Appeals reversed the decree of the Chancellor, and granted the full relief sought in the cross bill, by giving Atyoe Bros. & Co. a recovery for $1,000 as damages, and then applying $533.20 thereof as a set-off to balance due on their note to Toomey, and rendering decree against him for the remaining $166.80.
Toomey has appealed to this Court and made an assignment of errors involving the questions hereinafter considered.
It is true that § 3872 of the Code (M. & V.) declares that, “either party dissatisfied with the judgment or decree of the Circuit1 or. Chancery Court, in a matter” of equity tried according to the forms of the Chancery Court, may appeal to the Supreme Court and have a re-examination in that Court of the whole matter of law and fact appearing in the record.” But that requirement of trial de novo in this Court does not apply in all chancery causes. The next section provides that ‘£ issues of fact in chancery, made up on demand of either party, and tried by jury according to the forms- of a Court of Law, are not- embraced in the foregoing section, and errors in the proceedings therein had can only be corrected as errors are corrected in actions at law.” Code (M. & V.), § 3873. See, also, § 5215.
The finding of the jury in such cases have “the same force and effect” as the verdict of a jury in ordinary trials at law. Code (M. & V.), § 5219; Gass v. Mason, 4 Sneed, 509; Bank v. Oldham, 6 Lea, 728; Ragsdale v. Gossett, 2 Lea, 739, and cases there cited.
“It is a familiar rule that the findings of fact
Reverse, and enter decree in accordance with this opinion, adjudging the balance of said note satisfied by an equal amount of damages recovered under the cross bill. Toomey will pay one half and Atyoe Bros. & Co. will pay the other half of all costs accruing in this cause.