Walter Diehnelt, Inc. v. Root

183 Wis. 535 | Wis. | 1924

Owen, J.

The complaint before us purports to be in equity for an accounting. It is demurred to, among other things, because it does not state facts sufficient to constitute a cause of action. While the action in equity for an accounting is a familiar one, and the jurisdiction of equity in that behalf has been generously extended, nevertheless it is still the law that, “In order to sustain a suit in equity for an accounting, some special and substantial ground of equity jurisdiction’ must be alleged, and it must appear that the remedy at law is inadequate.” Ellis v. Southwestern Land Co. 102 Wis. 409, at p. 412 (78 N. W. 583). These special grounds of equity jurisdiction may be stated, generally, to be the need of a discovery, the complicated character of the accounts, and the existence of a fiduciary or trust .relation. 1 Corp. Jur. 613; Stein v. Benedict, 83 Wis. 603, 53 N. W. 891.

It is true that this controversy is between the plaintiff and its former agent. But it does not appear that the agent possesses any knowledge not known to the plaintiff, or that the agent is called upon to account for any money or property coming into his hands as a result of the fiduciary relation. The complaint simply discloses that the agent rendered and performed services for the plaintiff for which he was paid from time to time, and that the payments so made exceed the amount of the commissions earned by him. There is nothing to indicate that -'the plaintiff's books of account do not show the exact conditions of the account existing between plaintiff and the defendant C. W. Root, or that the defendant C. W. Root has knowledge or information concerning the status of said account which is not known to plaintiff, or that the said C. W. Root has collected any money for or on plaintiff’s behalf. There is not a single allegation in the complaint indicating the necessity for the interposition of a court of equity in order to do justice between the parties, or to suggest that plaintiff has not a complete remedy at law. Neither does the complaint present a situation where the powur of a court qf equity should be exerted to prevent a multiplicity of suits. Plaintiff’s cause of action is fully set forth in its counterclaim filed in the civil court action. That action should be permitted to take its course. For errors that may occur, if any, plaintiff will have its remedy by appeal. We see- no excuse for the bringing of this action. Its institution creates the only situation that even hints at a multiplicity of suits. We are not impressed that it was commenced with-any idea of facilitating the administration of justice. The demurrer should have been sustained and the complaint dismissed. This leaves no basis for the order of August 2d. Discussion of other questions argued becomes unnecessary.

By the Court. — Orders appealed from are reversed.