Burgin v. Smith

• Decision Date: 16 May 1932
• Docket Number: 29943
• Citation: 163 Miss. 797,141 So. 760
• Court: Mississippi Supreme Court
• Parties: BURGIN et al. v. SMITH

141 So. 760

163 Miss. 797

BURGIN et al. v. SMITH

No. 29943

Supreme Court of Mississippi

May 16, 1932

Division A

1 ACCOUNT. Bill alleging fixed sum due for live stock sold did not give equity court jurisdiction on ground accounting was required.

Bill alleged sale and delivery of fixed number of sheep and cattle at stated price, amounting in aggregate to fixed sum upon which balance of five hundred dollars on deposit with seller was credited, leaving a definite and fixed sum alleged to be due, so that it was a simple money demand, and there could be no necessity for invoking aid of court of equity to state an account between parties.

2 DISCOVERY. Bill held to present no basis for equitable jurisdiction on ground of discovery as to whether buyer paid seller's agent for sheep sold.

Bill alleged that amount specified was due for sheep sold, and alleged that after seller's agent delivered sheep to buyer, agent informed seller that agent had not received pay for sheep, and set forth reasons assigned by agent for failure to collect purchase price at time of delivery, and bill did not allege collusion between buyer and his agent, or that seller had any reason to disbelieve statements of his agent, or that seller had any reason to believe that agent was wrongfully or fraudulently concealing from him any facts in connection with transaction.

3 VENUE. Seller's agent not accounting for receipts Held not necessary party to seller's action against buyer for balance due for sheep sold, as regards venue (Code 1930 section 363).

Action was commenced in county in which seller's agent resided, but cause of action alleged against buyer was separate and distinct action in debt on specific contract, whereas cause of action against agent was action by principal against agent for breach of contract of employment in failing to account for funds received on principal's behalf, and the agent was not necessary party to cause of action against buyer.

HON. T. PRICE DALE, Chancellor.

APPEAL from chancery court of Simpson county, HON. T. PRICE DALE, Chancellor.

Suit by B. A. Smith against C. B. Burgin and others. From a decree from complainant, defendants appeal. Reversed and remanded.

Reversed and remanded.

D. A. Burgin, of Columbus, and Lotterhos & Travis, of Jackson, for appellants.

On the claim of jurisdiction for an accounting, it should not be entertained where the items both of debit and credit are few and for fixed sums and are easily within the power of a jury to consider.

Griffith Chancery Practice, page 26, note 15; Lesley v. Rosson, 39 Miss. 368.

The mere fact that an account, although of some length in debits and credits, is involved in a case, does not give jurisdiction in equity. The requirement is that the account must be complicated to that extent that it could not be well unravelled by a jury, or it must be mutual, or require discovery, or there must be some other equitable feature involved.

Bradley v. Howell, 134 So. 843.

A bill of complaint cannot be sustained as a bill for discovery where the bill of complaint shows that the complainant has full knowledge of the facts.

McKee v. Coffee, 58 Miss. 653.

The bill does not show that any fact or facts which complainant seeks to elicit from the defendants are exclusively within the knowledge of the defendants, nor does the bill show that the said disclosure is necessary in order to enable complainant to make out his case; these facts must appear in the bill in order to give the court jurisdiction to compel a discovery.

Boyd v. Swing, 38 Miss. 182.

A bill of discovery which will draw the whole controversy into equity, upon the equity of the discovery alone without the presence of any other equity must be (1) of a meritorious case for the enforcement of a civil or property right, (2) wherein the discovery is of material and relevant matters which are exclusively within the knowledge or within the power or custody of the defendant, and (3) which it is not within the reasonable reach of the complainant to obtain without the aid of the discovery prayed, and (4) which are such that it is practically indispensable to the ends of full and exact justice that the discovery be had. The bill must of course be against a party shown thereby to be liable to the complainant, and may not be maintained against a mere witness.

Griffith's Chancery Practice, section 429; 1 Story Equity Jurisprudence, page 91.

If it turn out that the allegations as to the discovery were a mere pretext to get the cause into chancery, it may be transferred even on the hearing provided that if the complainant be entitled to any material part of the discovery sought it will hold the case.

Griffith's Chancery Practice, section 431.

And all cases not otherwise provided may be brought in the chancery court of any county where the defendant, or any necessary party defendant, may reside or be found.

Section 363, Code of 1930.

Suits wholly in personam must be filed in the county where one of the necessary parties defendant resides. It is true that the statute again uses the permissive word "may" in that connection, but it is the uniform policy of judicial procedure in our state to bring all litigation in personam to the home of the defendant, and the statute must be construed in the light of that policy.

Griffith's Chancery Practice, section 155.

The complainant's bill shows that the alleged cause of action against Burgin Brothers, appellants, is a simple money demand, purely a law action, an action in debt on a specific contract, and that Burgin Brothers and Puckett are not jointly liable unto complaint under this contract. The alleged cause of action against Puckett, the other joint defendant, is an action by the principal, Smith, against his agent, Puckett, for an accounting of matters pertaining to his agency. Hence, there are two separate and entirely different causes of action. The bill, therefore, is multifarious by reason of the said misjoinder of parties defendant, and appellants' special demurrer should have been sustained.

Code of 1930, section 396.

A complainant cannot demand by the same bill several distinct matters against several defendants. They must have an interest in the same object in relation to which redress is sought. A bill is multifarious if it demand several matters of wholly separate and distinct natures either in behalf of unconnected complainants or against unconnected defendants. If a party be brought into a bill with respect to whom none of the other parties have any interest, and there will be no connected bearing upon the liability between the parties so brought in, the bill is multifarious and subject to demurrer.

Griffith's Chancery Practice, section 205.

Where the bill states separate and distinct causes of action against each of several defendants, a demurrer would be sustained on the ground of multifariousness.

Reese et al. v. Salmon, 99 So. 382.

W. D. Hilton, of Mendenhall, for appellee.

Equity does have jurisdiction where the account is complicated to the extent that it cannot be unraveled by a jury, or where it is mutual, require discovery or some other equitable feature is involved.

Bradley v. Howell, 134 So. 843.

The rule that notice to an agent is notice to his principal is not applicable unless the notice has reference to business in which the agent is engaged under authority from the principal, and is pertinent to matters coming within that authority; and hence a principal is not affected with knowledge which the agent acquires while not acting in the course of his employment, or which relates to matters not within the scope of his authority, unless the agent actually communicates his information to the principal.

2 C. J., p. 863, par. 544.

The authority of an agent is limited exclusively to the authority originally given, and any other act of his, other than following his strict instructions, is not binding on the principal.

Eaton v. Hattiesburg Auto Sales Company, 151 Miss. 211, 117 So. 534; Cresap v. Furst & Thomas, 141 Miss. 30, 105 So. 848; Philip-Gruner Lbr. Co. v. Algon Lbr. Co., 123 Miss. 157, 85 So. 191; Ismert-Hincke Milling Co. v. Natchez Baking Co., 124 Miss. 205, 86 So. 588; Odd-fellow Benefit Association v. Smith, 101 Miss. 332, 58 So. 100.

The bill clearly shows that the facts sought from Puckett and Burgin Brothers are exclusively within their knowledge, and that such facts are necessary in order to enable complainant to make out his case against both jointly, and to ascertain which of the two are primarily liable to him.

A bill which states the facts within the knowledge of the complainant in a clear and definite manner and with as much material particularly as the circumstances of the case justly permit, is not objectionable in that the complete facts must be obtained by discovery from the defendant who alone has knowledge or means of knowledge concerning same, provided of course sufficient facts are stated to disclose the existence of the cause of action asserted, it being the rule that where a bill states enough to reveal a definite cause of action and shows that all the detailed information is in the exclusive possession of the defendant, and that a discovery is proper the bill will be sufficient.

Griffith's Chancery Practice, section 173.

It has been said broadly that it is not essential that the parties defendant shall each have the same interest in the litigation; that in furtherance of the policy of equity to avoid a multiplicity of suits they may be joined even where their interests are separate or different, provided only that in the matters involved they each have some connected interest. It is not necessary that a privity exist between each and some one of the others, so...