Arkadelphia Milling Co. v. Barker

• Decision Date: 07 July 1913
• Citation: 159 S.W. 208,109 Ark. 171
• Parties: ARKADELPHIA MILLING COMPANY v. BARKER
• Court: Arkansas Supreme Court

159 S.W. 208

109 Ark. 171

ARKADELPHIA MILLING COMPANY v. BARKER

Supreme Court of Arkansas

July 7, 1913

Petition for mandamus; James M. Barker, Chancellor; petition denied.

STATEMENT BY THE COURT.

The petitioner applies to this court for a writ of mandamus to compel the respondent as chancellor to hear and determine a certain cause which was originally brought by M. H. Purifoy as plaintiff, against the Arkadelphia Milling Company, as defendant, in the circuit court of Ouachita County, and which was by that court transferred to the chancery court upon motion of the defendant therein, over the objection of the plaintiff. When the cause reached the chancery court the plaintiff therein moved to remand it to the circuit court which motion was by the court granted.

The petitioner set up that Purifoy filed his complaint in the circuit court of Ouachita County, claiming an indebtedness against the petitioner in the sum of $ 3,395.54 for staves sold to the petitioner under three contracts, set out and made exhibits to the petition therein, but which it is unnecessary to set forth at length. The contracts showed definitely the prices agreed to be paid for the staves specifying their kind, number, grade and value. The petition shows that Purifoy, in the original cause, claimed that the petitioner was indebted to him in the sum of $ 430 for breach of contract entered into between Purifoy and the petitioner here in regard to the bucking of certain staves.

The petition sets out the answer and cross complaint of petitioner, defendant below, herein, to the complaint of Purifoy in the original action, and the answer admitted the execution of the contracts, but denied that the defendant owed the plaintiff the amount sued for, and denied that it had breached its contract in regard to furnishing the bucker for the staves. Denied specifically the allegations of the complaint as to damages, and set up that defendant had already overpaid Purifoy for all staves received by it under the contracts, setting up specifically wherein it had complied with its contracts with plaintiff, and alleging breaches of the contract upon the part of the plaintiff and claiming, by way of cross complaint and counter-claim, that the plaintiff was due it the sum of $ 1,675.42, the difference between the amount the defendant had furnished and advanced to plaintiff and the sum due plaintiff for all staves delivered under the contracts at the contract price.

The petition shows that defendant in the cause below attached an itemized statement of its account with the plaintiff, making the same an exhibit to its answer, counter-claim and cross complaint; and the defendant prayed judgment in the sum of $ 1,675.42.

The itemized account set out each item of cash furnished Purifoy and sums up the total thereof. It itemized the number of staves received by it under the contracts, giving the grade, dimensions and price.

The petition further set forth the motion that was made in the original cause by the defendant therein to transfer to equity, in which it is stated that, "the grading, counting and averaging of the 116,680 staves makes up a long and complicated account and involves a very complicated system of standard measuring and grading staves." And, further, "that the pleadings and exhibits thereto show that a trial of this suit involves a long, complicated, mutual running account between the plaintiff and the defendant, and that a fair consideration of the issues herein involved can not be had in a court of law."

The petition also shows the response that was made by the plaintiff in the original cause to the motion to transfer; and the plaintiff, in his response, alleged "that as to the items set out in defendant's statement, made an exhibit to said motion, and purporting to show amounts paid by it to January 1, 1912, amounting in the aggregate to $ 5,138.57, plaintiff admits that each of said checks and drafts was issued by the defendant, and that the cash was advanced as set out in said statement, and with a possible exception of three or four of said items, they are properly chargeable to plaintiff."

The petition shows that the cause was transferred on this motion to the chancery court, and that after the transfer had been made to the chancery court the plaintiff moved that court to transfer the said cause back to the law court, setting out in his motion that the answer did not contain any equitable defense, and that the action set up in the complaint was an action for debt on account and was cognizable in a court of law, and not in a court of chancery. The petition shows that the chancery court granted the motion to transfer or remand the cause to the circuit court, and refused to take jurisdiction of the cause. Wherefore, the petitioner prayed that a writ of mandamus issue out of this court compelling the chancery court to take jurisdiction and try the cause.

The chancellor, in his response to the petition herein, among other things, says that he assumed jurisdiction to hear the motion to transfer the cause to the law court after the same had been transferred to the chancery court. He heard the motion upon the allegations contained therein, and the exhibits thereto. He set forth in his response, "that counsel for plaintiff in said cause in arguing said motion admitted that all staves had been disposed of by defendant in the market, and no grading or measuring thereof could be had by any order of the chancery court, which statement was not controverted by counsel for petitioner when reference was made thereto by the court.

"It appeared to respondent, from the exhibits filed by petitioner, that there was nothing for a chancery court to discover by causing an accounting between the parties and plaintiff in said cause admitted that all items making up said account up to January 1, 1912, aggregating $ 5,138.57, with the exception of three or four items thereof, were all properly chargeable to plaintiff's account; that as to the remaining items arising out of expenditures by petitioner after it took possession of the staves under its cross bond, and which consist of amounts paid out in preparing said staves for market as they were to have been prepared under the contract, plaintiff admitted that each of said items had been expended by petitioner, but denied any of them were chargeable to plaintiff's account, plaintiff contending that petitioner was liable to him for the staves in the condition they were when it took them under the cross bond. Wherefore, it seemed to respondent there was no element of complication of account but a mere question of law as to whether said expense is to be charged to plaintiff's account; that as to the counting, measuring and grading of said staves, it appeared from the exhibits filed in said cause by petitioner that it had already caused each of said staves to be counted, graded, classified and measured, and the value thereof, at the contract price extended, and the total value of all staves extended and stated; that upon consideration of said matters, respondent was of the opinion that petitioner had a full and complete remedy at law, and sustained said motion to remand and ordered the cause remanded to said circuit court."

Petition for mandamus denied.

McMillan & McMillan, for petitioner.

The fact that both parties have stated an account does not relieve the situation. The number of transactions and the large differences between them make it impractical to try the case before a jury.

This case is cognizable in chancery, and jurisdiction should have been retained by that court, even though the original jurisdiction may have been concurrent with that of the circuit court. 91 Ark. 231; 95 Ark. 122; 2 Am. Dec. 291, 298 299, 306, 307, 308; 8 Ark. 57; 31 Ark. 353; 49 Ark. 576; 51 Ark. 198, 201; 89 Ark....