Dinsmore v. Hardison
| Decision Date | 24 April 1916 |
| Citation | 111 Miss. 313,71 So. 567 |
| Court | Mississippi Supreme Court |
| Parties | DINSMORE v. HARDISON |
March 1916
APPEAL from the chancery court of Noxubee county, HON. J. F. MCCOOL Chancellor.
Bill by J. M. Hardison against James A. Dinsmore. From a decree overruling a demurrer to the bill, defendant appeals.
The facts are fully stated in the opinion of the court.
Affirmed.
T. W Brame and O. D. Smith, for appellant.
In discussing the matter of jurisdiction, we need not go far afield, the question is surely settled that a court of law is the proper tribunal in which to ask an award of damages for the failure to perform a simple contract. Moreover the question is well settled as to the appropriate form of action therefor. The facts set out in the bill and alluded to therein, we submit, might form a basis for an action for fraud and deceit. For equity jurisdiction to attach, there must be a distinct ground therefor, and when there is such ground, awarding damages is merely incidental.
We invite the court's especial attention to Scherck v. Moyse, 94 Miss. 259. Like the case at bar, the plaintiff sought to recover damages resulting from a failure to consummate a profitable resale of property.
The court said: "We may dispose of the contention (that the instrument might form the basis of the suit for damages) by saying that the only damages sought to be here recovered are the profits on a resale, and that these are not recoverable, except in a common law action for fraud and deceit."
The court referred with evident approval to Vincent v. Corbett, 94 Miss. 46, which is an excellent review of the law governing actions for fraud and deceit. 14 Amer. & Eng. Ency. of Law (2 Ed.) page 173.
The bare allegation that there should be an accounting constitutes the only ground which can possibly give jurisdiction to a court of equity. But it is not fortified by any allegation of advances made on one side or the other; nor of mutual dealings or complicated accounts. An accounting always implies more or less adding up or subtracting and striking a balance. To allow all cases based on simple contract and involving a single transaction or a single item charged by the complainant against the defendant, as in the case involved, would enlarge the jurisdiction of the chancery court beyond any known limit. See Samuel Garland v. Hull, 13 S. & M. 75.
Jacobson & Brooks, for appellee.
Section 147 of the Constitution of Mississippi reads as follows: "No judgment or decree in any chancery or circuit court, rendered in a civil case, shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree for any error or mistake as to whether the case in which it was rendered was of equity or common law jurisdiction."
I respectfully submit that the chancery court of Noxubee county has taken jurisdiction of this matter and this appeal is here presented from a decree of the court overruling demurrer to the original bill.
Our court fairly teems with decisions upholding and strengthening section 147 of the Constitution of Mississippi.
This is an appeal from a decree overruling a demurrer to a bill filed in the chancery court of Noxubee county, which bill, in substance, alleges the following facts:
The complainant is engaged in the business of buying cotton, and has an agent in the city of Macon, Miss., who buys cotton there in the open market for him; that his agent, during the year 1913, made a contract with the appellant here for the purchase of sixty bales of cotton which the appellant represented that he had already harvested from his fields; the sixty bales of cotton were to be delivered during the months of September, October, and November, 1913, on a price basis of middling cotton at ten and one-half cents per pound, and that complainant was to pay for the cotton as the same was delivered to him; that in pursuance of this contract the defendant executed and delivered to the complainant a written acknowledgment of the...
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