Newsum v. Interstate Realty Co.

Decision Date12 December 1925
Citation278 S.W. 56
PartiesNEWSUM et al. v. INTERSTATE REALTY CO. et al.
CourtTennessee Supreme Court

Appeal from Chancery Court, Shelby County; Israel H. Peres, Chancellor.

Suit by Thornton Newsum and others against the Interstate Realty Company and another. Decree dismissing bill, and complainants appeal. Affirmed.

Cary & Vorder-Bruegge, of Memphis, for appellants.

A. B. Knipmeyer, Metcalf & Metcalf, and John W. Apperson, all of Memphis, for appellees.

CHAMBLISS, J.

Complainants, owning certain valuable real estate, placed it for sale with more than one agency. The two defendants both claiming commissions on the sale, this bill was filed as a bill of interpleader, or in the nature of a bill of interpleader, and, in the alternative, as a proceeding under the Declaratory Judgments Act of 1923, c. 29.

It is an essential of an interpleader bill, or of a bill of this nature, that the complainant be liable to one only of the parties defendant, never by any possibility to both. The amount or value of the obligation must not be in dispute, but the identity of the lawfully entitled claimant only. As expressed by Mr. Gibson:

"This thing, debt, or duty, must be specific and definite, and the holder thereof must have no title, claim, or interest in or to it." Suits in Chancery, § 1110.

And, as well said:

"The office of an interpleading suit is not to protect the parties against a double liability, but against double vexation on account of one liability." 15 R. C. L. § 3, p. 222, notes 14 and 15.

The last quotation aptly applies here, and the rule thus announced is conclusive, for here the defendant parties each claim independently of the other, and the rights of neither are dependent upon the rights of the other. As aptly suggested by the learned chancellor, the defendants are each claiming a commission, not the commission, for making the sale. No specific fund is at stake. A double liability being legally possible, the complainant is not in that disinterested attitude which is essential. Cases cited by counsel are in point. Maxwell v. Frazier, 52 Or. 183, 96 P. 548, 18 L. R. A. (N. S.) 102; Sachsel v. Farrar, 35 Ill. App. 277; Hoyt v. Gouge, 125 Iowa, 603, 101 N. W. 464.

Nor may this suit be maintained under the Declaratory Judgments Act. A construction by this court of the exhibited contract, shown to have been made through defendants Thompson and Metcalf with the purchaser, did not determine the rights of either of the defendants to commissions claimed by them. Nor does the bill show the facts upon which rest the legal relations of complainant to both or either of the defendants in such form as to afford a basis for a...

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40 cases
  • Beatty v. Chicago, B. & Q. R. Co.
    • United States
    • Wyoming Supreme Court
    • 10 Diciembre 1935
    ... ... Miller, (Tenn.) 261 S.W. 965 ... The act is essentially one of construction. Newsum v ... Realty Company, (Tenn.) 278 S.W. 56. Where there exists ... another remedy, the act is ... ...
  • Colonial Pipeline Co. v. Morgan
    • United States
    • Tennessee Supreme Court
    • 9 Septiembre 2008
    ...is one of construction. Hinchman v. City Water Co., 179 Tenn. 545, 167 S.W.2d 986, 992 (1943) (quoting Newsum v. Interstate Realty Co., 152 Tenn. 302, 278 S.W. 56, 56-57 (1925)). While findings of fact are permitted in a declaratory judgment action, "the settlement of disputed facts at issu......
  • Campbell v. Sundquist
    • United States
    • Tennessee Court of Appeals
    • 26 Enero 1996
    ...of disputed facts." Standard Accident Ins. Co. v. Carvin, 217 Tenn. 662, 400 S.W.2d 235, 236 (1966) (quoting Newsum v. Interstate Realty Co., 152 Tenn. 302, 305, 278 S.W. 56 (1925)). The existence of a justiciable controversy is also a jurisdictional prerequisite to the maintenance of an ac......
  • Washington-Detroit Theater Co. v. Moore
    • United States
    • Michigan Supreme Court
    • 6 Marzo 1930
    ...especially where the disputed questions of fact will be the subject of judicial investigation in a regular action. Newsum v. Interstate Realty Co., 152 Tenn. 302, 278 S. W. 56. In addition to the foregoing, the British courts have another rule which does not seem to have been passed upon in......
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