Grabau v. Nurnberg

• Decision Date: 14 December 1917
• Citation: 166 N.W. 508,39 N.D. 57
• Court: North Dakota Supreme Court

166 N.W. 508

39 N.D. 57

RUDOLPH GRABAU, Respondent, v. HERMAN NURNBERG, Appellant

Supreme Court of North Dakota

December 14, 1917

Rehearing denied February 7, 1918.

Action for an accounting.

Appeal from District Court of Stutsman County, J. A. Coffey, J.

Affirmed.

John A Jorgenson, for appellant.

A court of equity cannot assume jurisdiction of every transaction between individuals in which an accounting is to be adjusted. 1 C. J. 613, note 59.

There must be need of discovery, the accounts must be complicated and there must exist a trust or fiduciary relation, to warrant equitable interposition. 1 C. J. 613, note 62; Clements v. W. S. Cooper Co., 136 N.Y.S. 93; Equitable Life Assur. Soc. v. Brown, 213 U.S. 25, 53 L.Ed. 682, 29 S.Ct. 404; 1 C. J. 617, note 6; Foley v Hill, 2 H. L. Cas. 28, 37, 9 Eng. Reprint, 1002; Nesbit v. St. Patrick's Church, 9 N.J.Eq. 76; Babbott v. Tewksbury, 46 F. 86; Kuhl v. Pierce County, 44 Neb. 584, 62 N.W. 1066; Lamaster v. Scofield, 5 Neb. 148; Uhlman v. New York, L. Ins. Co., 109 N.Y. 421, 4 Am. St. Rep. 482, 17 N.E. 363; Marvin v. Brooks, 94 N.Y. 71; Smith v. Bodine, 74 N.Y. 30; Williams v. Slote, 70 N.Y. 601; Niehaus v. Niehaus, 141 A.D. 251, 125 N.Y.S. 1071; Howell v. Crosby, 89 Hun, 355, 35 N.Y.S. 328; Abbey v. Wheeler, 85 Hun, 226, 32 N.Y.S. 1069; Hackett v. Equitable Life Assur. Soc. 30 Misc. 523, 63 N.Y.S. 847; Bellingham v. Palmer, 54 N.J.Eq. 136, 139, 33 A. 199; Fluker v. Taylor, 3 Drew. 183, 192, 61 Eng. Reprint 873; State v. Churchill, 48 Ark. 426, 3 S.W. 352, 880.

The fact that many book accounts, books, and entries are to be examined before the party sued can be fixed with liability does not oust the jurisdiction of a court of law. Fowle v. Lawrason, 5 Pet. 495, 8 L.Ed. 204; Baker v. Biddle, Baldw. 394, Fed. Cas. No. 764; Pollak v. H. B. Claflin Co., 138 Ala. 644, 35 So. 645; Beggs v. Edison Electric Illuminating Co., 96 Ala. 295, 38 Am. St. Rep. 94, 11 So. 381; State v. Bradshaw, 60 Ala. 239; Church v. Anti-Kalsomine Co., 118 Mich. 219, 76 N.W. 383; 1 C. J. 620, note 37.

An offer to do something by way of compromise cannot be called an admission. West v. Smith, 101 U.S. 263, 25 L.Ed. 809; White v. Old Dominion S. S. Co., 102 N.Y. 661, 6 N.E. 289.

An unaccepted offer of compromise is irrelevant to the issue of liability. Feibelman v. Manchester F. Assur. Co., 108 Ala. 180, 19 So. 540; Dennis v. Belt, 30 Cal. 247; Davis v. Simmons, 1 Ariz. 25, 25 P. 535; Holy Cross Gold Min. & Mill Co. v. O'Sullivan, 27 Colo. 237, 60 P. 570; Fowles v. Allen, 64 Conn. 350, 30 A. 144; Kelly v. Strouse, 116 Ga. 872, 43 S.E. 280; Kroetch v. Empire Mill Co., 9 Idaho, 277, 74 P. 868; Chicago, E. & L. S. R. Co. v. Catholic Bishop, 119 Ill. 525, 10 N.E. 372; Louisville, N. A. & C. R. Co. v. Wright, 115 Ind. 378, 7 Am. St. Rep. 432, 16 N.E. 145, 17 N.E. 584, 14 Am. Neg. Cas. 488; Rudd v. Dewey, 121 Iowa 454, 96 N.W. 973; Myers v. Goggerty, 10 Kan.App. 190, 63 P. 296; Groff v. Hansel, 33 Md. 161; Hutchinson v. Nay, 183 Mass. 355, 67 N.E. 601; Ward v. Munson, 105 Mich. 647, 63 N.W. 498; Melby v. Osborne, 35 Minn. 387, 29 N.W. 58; Smith v. Shell, 82 Mo. 215, 52 Am. Rep. 365; Boice v. Palmer, 55 Neb. 389, 75 N.W. 849; Greenfield v. Kennett, 69 N.H. 419, 45 A. 233; Scheurle v. Husbands, 65 N.J.L. 681, 48 A. 1118; Tennant v. Dudley, 144 N.Y. 504, 39 N.E. 644; Ely v. Norfolk, S. R. Co., 102 N.C. 42, 8 S.E. 779; Sherer v. Piper, 26 Ohio St. 476; Fisher v. Fidelity Mut. Life Asso. 188 Pa. 1, 41 A. 467; Norris v. Hartford F. Ins. Co., 57 S.C. 358, 35 S.E. 572; Reagan v. McKibben, 11 S.D. 270, 76 N.W. 943, 19 Mor. Min. Rep. 556; Strong v. Stewart, 9 Heisk. 137; International & G. N. R. Co. v. Ragsdale, 67 Tex. 24, 2 S.W. 515; Brown v. Shields, 6 Leigh, 440; Richards v. Noyes, 44 Wis. 609; West v. Smith, 101 U.S. 263, 25 L.Ed. 809; Knowles v. Crampton, 55 Conn. 336, 11 A. 593.

"A covenant on the part of the lessee to repair or keep in good repair imposes on him an obligation to rebuild the demised premises if they are destroyed during the term by fire, or other casualty, even where he is without fault." 24 Cyc. 1089.

John W. Carr, for respondent.

"In the absence of statutory provision, bias or prejudice on the part of the judge does not disqualify him. Disqualifying a judge on the ground of prejudice is so liable to abuse that many states have refused to adopt such rule, and even where it has been adopted liability to abuse induces the most rigid construction of its terms." 23 Cyc. 582 and cases cited in note.

Objection to a judge must be made timely or it will be disregarded. 23 Cyc. 591 and cases cited; Stockwell v. Crawford, 21 N.D. 261, 130 N.W. 225.

The order refusing to grant an application for a change of judges is an appealable one. White v. Chicago, M. & St. P. R. Co., 5 Dakota 508, 41 N.W. 730; Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082.

Whenever the subject-matter involved in the litigation cannot be fully investigated in a court of law, a court of equity exercises a sound discretion in decreeing an account. 1 C. J. 612, 614-616, 618, 619, §§ 56-58, 63.

"An accounting in equity may generally be had where the funds or property are jointly owned or held, and one party refuses to account to the other for his share." 1 C. J. 619, 620, 624, §§ 64, 75.

BIRDZELL, J. ROBINSON, J. (concurring).

OPINION

BIRDZELL, J.

This is an appeal from a judgment entered by the district court of Stutsman county in an action for an accounting. The facts are as follows:

During the years 1914 and 1915 the plaintiff farmed certain land owned by the defendant. His lease was in the form commonly called a cropper's contract, in which the title to the crops was reserved in the defendant until settlement. There was very little crop grown on the land in 1914, and by reason of this fact, together with the poor quality of that which was grown, no grain was marketed, except a small quantity of wheat. Plaintiff bought the defendant's share of the oats and speltz. The defendant sold the wheat, amounting to about $ 63, and retained the money. In the year 1915, the crops consisted of wheat, barley, oats, and speltz, which the defendant received and sold, retaining the proceeds. During this time, the defendant had a store in Jamestown, at which the plaintiff ran an account. Defendant also advanced to the plaintiff sums of money at various times. The defendant owned a threshing machine in 1915, which the plaintiff operated for him for a short period. When the parties undertook to settle in the fall of 1915, they could not reach an agreement. Several conferences were held, at some of which the parties and their attorneys were present, but no satisfactory settlement was concluded. Whereupon plaintiff brought this action for an accounting. The action resulted in a judgment in favor of the plaintiff for $ 995.66, with interest at 6 per cent from November 1, 1915, and costs. The items of account, as found by the trial court and upon which the judgment is based, are as follows:

"The court finds that the defendant sold the entire wheat and barley crop raised on said land under said contract in the season of 1915, and received therefor the following amounts: For the wheat crop, the sum of $ 1,980.80; and for the barley crop, the sum of $ 2,785.55,--making a total sum received by the defendant for the entire wheat and barley crops of 1915 of $ 4,766.35. That the defendant now retains the entire amount last named.

"The court finds that the plaintiff is entitled to the following credits in addition to the above, to wit:

Twelve days' services in charge of defendant's threshing outfit

in the season of 1915, at $ 10 per day

$ 120.00

For hauling the defendant's threshing outfit to his farm

15.00

For teams and wagons in threshing season of 1915, furnished to

defendant, at deft. request

78.75

One half of 125 bushels of oats used for feed by defendant in

threshing season of 1915, at 50 cents per bushel

31.25

Plaintiff's total credits

$ 2,628.17

That there should be deducted from the above sum of plaintiff's credits, $ 2,628.17, the following credits due to the defendant, to wit:

609 bushels of oats at 50 cents per bu.

$ 304.50

Interest on this sum at 10 per cent, from Jan. 1, 1915, to Nov. 1

25.40

400 bus. speltz at 50 cents per bu.

200.00

Interest on above sum at 10 per cent from Jan. 1, 1915, to Nov. 1

16.17

Money paid Klingman

48.25

Money paid Walters

4.95

Money paid Padden

62.00

Note dated March 19, 1915, for $ 110, with interest at 10 per cent

to Nov. 1, 1915

116.78

Fletcher's thresh. bill for threshing wheat, 1915 crop

130.30

Threshing speltz, 1915

50.09

Threshing barley, 1915

222.60

Threshing oats, 1915

46.62

Plaintiff's account at defendant's store

130.05

Interest on above, October 23, 1915, at 10 per cent to Nov. 1

.30

Agreed price under contract for pasture for 1915

150.00

Agreed price for potato and millet land for 1914

34.00

For the use of the land included by plaintiff in the pasture, and

designated in the evidence as the flat for the year 1915, on the

basis of its value for pasture land, the defendant should be

allowed the sum of

100.00

The court finds from the evidence that, until this action was commenced by the plaintiff, that the defendant asked only $ 100 for the use of this flat for the two years, 1914 and 1915. The court finds that as early as July, 1914, the defendant knew that this land designated as the flat was fenced in by the plaintiff as a part of the pasture land, and that defendant made no objection to this land being so used. And that the land designated as the flat, and fenced in as pasture by the plaintiff, is in fact land that is of poor quality, and land best adapted to grazing purposes. That only a small part of said tract had ever been...