Bradshaw v. Thompson

• Decision Date: 20 January 1972
• Docket Number: No. 71-1131.,71-1131.
• Citation: 454 F.2d 75
• Parties: C. E. BRADSHAW, Sr., Appellant, v. Vic THOMPSON et al., Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

454 F.2d 75 (1972)

C. E. BRADSHAW, Sr., Appellant, v. Vic THOMPSON et al., Appellees.

No. 71-1131.

United States Court of Appeals, Sixth Circuit.

January 20, 1972.

COPYRIGHT MATERIAL OMITTED

George T. Eidson, Jr., and Gregory A. Presnell, Orlando, Fla., for appellant; Akerman, Senterfitt, Eidson & Wharton, Orlando, Fla., of counsel.

Ben Kingree, III, Shelbyville, Tenn., for Thompson ; Ben Kingree, III, of Bobo, Tarpley & Kingree, Shelbyville, Tenn., on brief.

James C. Burns, Jr., Shelbyville, Tenn., on brief, for Martin.

Jack M. Irion, Shelbyville, Tenn., for Brandon ; Bomar, Shofner, Bomar & Irion, Shelbyville, Tenn., on brief.

Knox Bigham, Lewisburg, Tenn., for Beech; Bigham & Binkley, Lewisburg, Tenn., on brief.

Before EDWARDS, PECK and MILLER, Circuit Judges.

JOHN W. PECK, Circuit Judge.

This case arose from an agency contract between the plaintiff-appellant, C. E. Bradshaw, a resident of Florida, and the defendant-appellee, Vic Thompson, a resident of Tennessee. The contract provided that Thompson was to sell some 60 Tennessee Walking Horses owned by Bradshaw at the best and highest cash price ; that he was to house, feed and care for them; that the title to all horses was to remain in Bradshaw's name until after the sale ; and that any check obtained by Thompson for the sale of any horse was to be made payable by the purchaser to Bradshaw, who would then remit to Thompson by separate check a twenty-five percent commission. Finally, the contract listed various items of equine tack belonging to Bradshaw which Thompson agreed to return upon termination of the agreement. The contract was signed and the horses were shipped to Thompson for sale in Tennessee.

Thompson then contracted with and delivered certain horses to the defendants-appellees Wallace Brandon and Joe Martin for the purpose of assisting in the sale of the horses. The remainder of the horses were retained by Thompson, and were disposed of in various ways : some were sold to purchasers who remitted checks payable to Bradshaw as contemplated by the contract ; some were given away by Thompson as additional commission for assisting in the sale of other horses ; some were sold on credit ; some were traded to third parties in exchange for other horses ; some were sold for cash or for check made payable to Thompson ; some were sold to a partnership consisting of various named defendants ; some were sold at public auction and purchased by Thompson or by one or more of the other defendants ; some were sold directly to Brandon who eventually resold them ; and some horses died while in the possession of Thompson. The appellees produced no records of any of these transactions, other than a few bank deposit slips. By October of 1968, all but approximately 21 of the horses had been disposed of. These remaining horses were entered by Thompson in the Murray Farm Sale, a public auction owned and operated by the defendant Beech.

When the appellant became aware that he could not ascertain what was happening in Tennessee to his horses, he filed this action in the District Court for the Eastern District of Tennessee basing jurisdiction on diversity of citizenship. In his original complaint, Bradshaw made allegations of fraud, conspiracy, breach of contract and breach of fiduciary duty, and requested a trial by jury. This complaint was later amended to delete the jury request and to include a request for an equitable accounting. The defendants contended that the action was one at law and requested a jury trial. The case was severed, and on the issue of liability, the jury found that Thompson, Brandon and Martin were all duly appointed agents and sub-agents of Bradshaw, but that only Thompson had breached his fiduciary duty to his principal. The issue of damages was then tried to the jury, and an award of $12,323.27 compensatory and $1,000.00 punitive damages was made against Thompson.

The appellant's prime contention on appeal is that the Court erred in submitting the case to the jury. He insists that his action is purely equitable and that only through an accounting will he be able to determine what sums are owed to him, but the existence of an agency relationship does not automatically entitle the principal to an accounting, nor does a prayer for an accounting automatically take the case away from the jury. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1961), Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 548, 3 L.Ed.2d 988 (1959). The law on this first point is accurately summarized by the comment to § 399(e) of the Restatement of Agency :

Unless there is such a complication of accounts that it is difficult for the machinery of the law courts to cope with them, the principal ordinarily cannot bring an action in equity for money due; if his remedy otherwise would be solely in the courts of law, he cannot bring an action for an account merely on the ground of the agency relation.

In Dairy Queen, Inc. v. Wood, the Supreme Court noted that insofar as the complaint requested a money judgment, it presented a claim which was unquestionably legal. The fact that the complaint was cast in terms of an accounting rather than in terms of an action for debt or damages did not alter the right to a trial by jury. 396 U.S. at 476, 82 S.Ct. 894. See also Beacon Theatres, Inc. v. Westover, 359 U.S. at 503-504, 514, 79 S.Ct. 548 (dissenting opinion) (1959). The problem of the instant case seems to have been anticipated by the Court when it commented in Dairy Queen upon the broad powers of discovery now available in suits at law:

Consequently, in order to maintain such a suit on a cause of action cognizable at law, as this one is, the plaintiff must be able to show that the "accounts between the parties" are of such a "complicated nature" that only a court of equity can satisfactorily unravel them. In view of the powers given to District Courts by Federal Rule of Civil Procedure 53(b) to appoint masters to assist the jury in those exceptional cases where the legal issues are too complicated for the jury adequately to handle alone, the burden of such a showing is considerably increased and it will indeed be a rare case in which it can be met. 369 U.S. at 478, 82 S.Ct. at 900.

The appellant sought recovery from Thompson for damages arising out of an alleged breach of contract. He alleged, among other things, that Thompson fraudulently withheld and concealed portions of the consideration which was the subject matter of the contract. He sought compensatory damages, including all commissions paid by appellant, lost profits for Thompson's failure to obtain the best and highest cash price for the animals, and punitive damages for fraud. These claims are unmistakably legal, and the defendants were entitled to a jury trial on all contested issues of fact. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 548, 3 L.Ed.2d 988 (1959).

The leading opinion subsequent to Beacon Theatres and Dairy Queen appears to be Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 294 F.2d 486 (5th Cir. 1961). There it was held that ". . . the mere presence of an equitable cause furnishes no justification for depriving a party to a legal action of his right to a jury trial." 294 F.2d at 490-491. In a footnote to that opinion it is noted that the result of Beacon Theatres will be a sharp reduction in the number of cases in which trial by a court without a jury may be held. 294 F.2d at 491, n. 12. See also McCoid, Procedural Reform and the Right to Jury Trial: A Study of Beacon Theatres, Inc. v. Westover, 116 U.Pa.L. Rev. 1 (1967). The availability of declaratory judgments and the liberal discovery procedures of the Federal Rules operate to make the legal remedies more "adequate" than before. This case is an example of that fact.

The appellant obtained by discovery all information to which he could have been entitled in an accounting. Information concerning the disposition of each horse, including purchase price, name of purchaser and the consideration received was obtained and was set forth in the pretrial order. Furthermore, the Court allowed the appellant a reasonable time after the jury had reported its verdict to request any further equitable accounting from Thompson. No request was every received.

An accounting is a...