Flaherty v. Bookhultz

• Decision Date: 07 December 1955
• Citation: 291 P.2d 221,207 Or. 462
• Parties: Lawrence H. FLAHERTY, Respondent, v. Donald BOOKHULTZ and Albert W. Riley, co-rtners, d/b/a Geo. E. Zweifel and Co., Appellants.
• Court: Oregon Supreme Court

Page 221

291 P.2d 221

207 Or. 462

Lawrence H. FLAHERTY, Respondent, v. Donald BOOKHULTZ and Albert W. Riley, co-rtners, d/b/a Geo E. Zweifel and Co., Appellants.

Supreme Court of Oregon.

Argued and Submitted Oct. 5, 1955.

Decided Dec. 7, 1955.

L. V. Weiser, Portland, for appellants. On the briefs were Weiser & Bowles, Portland.

Fred B. Duffy, Portland, for respondent. On the briefs were William J. Crawford and Parker & Duffy, Portland.

Before WARNER, C. J., and LUSK, BRAND and LATOURETTE, JJ.

WARNER, Chief Justice.

This appeal comes to us from a judgment in what the appellant denominated a suit in equity, but which the trial court apparently thought and treated as an action at law. The plaintiff sought to recover judgment for commissions earned under an oral contract of employment to sell certain machinery and equipment for the defendants Bookhultz and Riley--copartners doing business as Geo. E. Zweifel & Co. The case was tried before the court without a jury, and from a judgment in favor of the plaintiff the defendants appealed.

As indicated by the foregoing statement there is a sharp difference of thought whether this is an appeal in equity or in law. It raises a question which necessitates an answer before we proceed further. There is no bill of exceptions. If the appeal is in equity, this is a matter of no importance. But, if the appeal is from an action at law, then appellants' four assignments of error must be found in and supported by such a record. In the absence of a bill of exceptions the only questions that can be considered on appeal are the sufficiency of the pleadings, the findings of the trial court, and whether the pleadings, or pleadings and findings support the judgment; and if we find them sufficient then our conclusion must be one of affirmation of the circuit court's judgment. In so doing we have no discretion, La Grande Air Service v. Tyler, 193 Or. 329, 330, 237 P.2d 503, and cases cited.

Appellants contend that this is an action for an accounting in equity. They claim equitable jurisdiction because the parties treated it as in equity during the course of the trial. In Paragraph VI of plaintiff's amended complaint we find the only allusion to an accounting. It there appears in these words:

'That the defendants have failed, neglected and refused to account to the plaintiff for the commissions on said sales, although often requested by the plaintiff so to do, and the defendants refuse to pay to plaintiff commissions on said sales and on said business as provided in said agreement between the plaintiff and defendants; that it is necessary that an accounting be had in order that the amounts payable and due to the plaintiff from said defendants under said sales agreement between the plaintiff and the defendants can be determined.'

This court has long recognized a clear distinction between the right to an accounting at law and the right to an accounting in equity. Kaston v. Paxton, 46 Or. 308, 80 P. 209, 114 Am.St.Rep. 871, was described as 'a suit for an accounting' of rentals received by defendant, but there we held the remedy was one at law for money had and received to the plaintiff's use, and ruled that the complaint failed to state facts justifying recourse to a court of equity.

In Smith v. Howell, 91 Or. 279, 301, 176 P. 805, 812, we pointed out that: 'Standing alone, the request for an accounting on the part of the plaintiffs will not be sufficient to take the case into equity on the ground solely that the plaintiffs seeking the relief may owe some money to defendants.' The opinion followed this with the statement: 'There is no allegation herein as to complexity of accounts between the parties, or in the nature of a discovery, or that a fiduciary relationship exists between the parties, nor any allegation of fraud.'

In Huebener v. Chinn, 186 Or. 508, 531, 207 P.2d 1136, we approved the distinction made by the Supreme Court of Iowa in Williams v. Herring, 183 Iowa 127, 165 N.W. 342, 344, L.R.A.1918F, 798. In the Williams case the Iowa court held that even though the number of items upon the books and transactions covered by the period of said business might be cumbersome and difficult to present to a jury, yet the accounts were not complicated nor intricate as far as the pleadings disclosed. The court emphasized that the fact that the accounts could be more 'conveniently' tried to the court than to a jury was not a ground for equitable jurisdiction saying that, '* * * there must be some other ground of equitable cognizance'. Later, in the Huebener opinion we find this statement from Goffe & Clarkener, Inc., v. Lyons Milling Co., D.C., 26 F.2d 801: "It is entirely clear that mere difficulty of proof does not confer jurisdiction upon equity." [186 Or. 508, 207 P.2d 1147.]

Upon what basis, then, may a complaint properly lay jurisdiction in equity in an action involving accounts and accounting? As indicated by Smith v. Howell, supra, several grounds for equitable cognizance are immediately apparent. Courts of equity have jurisdiction over trusts, express or implied, for the purpose of compelling an accounting. Courts of equity have jurisdiction to settle accounts whenever a fiduciary relationship exists between the parties and the duty to render an account to one of the parties rests on the other. Templeton v. Bockler, 73 Or. 494, 507, 144 P. 405, and cases there cited.

An accounting may be had as incidental to other equitable relief. If the accounts proved to be complicated in the instant case, a plain, speedy and adequate remedy was available by recourse to ORS 17.725, resulting in the...