Vilwig v. Baltimore & O. R. Co.

• Decision Date: 02 October 1884
• Citation: 79 Va. 449
• Court: Virginia Supreme Court
• Parties: VILWIG v. B. & O. RAILROAD COMPANY.

79 Va. 449

VILWIG v. B. & O. RAILROAD COMPANY.

Supreme Court of Appeals of Virginia.

October 2, 1884

Appeal from decree of circuit court of Frederick county rendered March 13th, 1884, in the chancery cause of the Baltimore and Ohio railroad company against B. H. Worthen and John Vilwig. The object of this suit was a discovery on oath from the company's agent, Worthen, of his receipts and credits and an account, before a commissioner, of the amount due to the company from its said agent, for which John Vilwig was liable as surety on Worthen's official bond, executed 13th January, 1875. Defendants demurred to and answered the complainant's bill, and several years after the suit was brought, filed a plea to the jurisdiction. Depositions were taken on both sides. At the hearing, the circuit court decreed that the company recover of the defendants the sum of $1,291.87, with interest and costs. From this decree John Vilwig appealed. Opinion states the case.

Holmes Conrad, for the appellant.

The bill prays for (1), discovery from Worthen; (2), an account before a commissioner.

The jurisdiction of the court of chancery depended then upon the necessity for a discovery and the propriety of an account.

1. Was a discovery needed, or was the bold averment of this bill a mere device to give this court jurisdiction?

Judge Story, in 1 Equity Jurisprudence, § 74, says: " If therefore, the discovery is not obtained, or it is made on a mere pretense to give jurisdiction, it would be a gross abuse to entertain the suit in equity, when the whole foundation on which it rests is either disproved or it is shown to be a colorable disguise for the purpose of changing the forum of litigation."

This bill was filed in 1875, and it charged that there could be no settlement of the account without a discovery. The answer of Worthen was not filed until 1883, and it makes no discovery of any kind, and none has ever been made in the case. But the complainants, the railroad company, have, from the books and papers in their office, ascertained the amount claimed, and their accountant, Mr. R. B. White, shows in his deposition that he had ascertained the amount before the bill here was filed, and, indeed, that bill states the amount to the cent--$1,140.39--showing that the averment of the bill was untrue.

But that discovery was not needed appears from the very bond on which the demand is made.

The bond provides, " that in any action on their bond, or on any question however or whenever arising or contested, as to the amount of money received, paid over or due by the said B M. Worthen * * * the books and papers of said company * * * and the instructions of the proper officers of the said company which may from time to time be given, shall be prima facie evidence of the matter therein contained against the said B. M. Worthen, agent as aforesaid, and against his sureties on this bond."

The books and papers from which alone this amount has been stated, required no proof, no discovery from the defendant to support them, but were, by the very terms of the bond, evidence of the facts.

But again, Judge Story says, 1 Equity Juris., § 74, " If the answer wholly denies the matter of fact of which discovery is sought by the bill, the latter must be dismissed, for the jurisdiction substantially fails by such a denial."

The answer of B. M. Worthen totally denies the allegations of the bill as to these matters. Russell v. Clark, 7 Cranch 69.

The jurisdiction of the court of chancery could not be maintained then on the ground of discovery.

2. The demand for an account furnishes no stronger ground to support the jurisdiction of the court.

" It is not in every matter of account cognizable at law that the equitable jurisdiction will be exercised. The general rule being, that a proper case is presented when the remedies at law are inadequate." 2 Pomeroy Equity Juris., section 1420.

Here was a penal bond upon a condition that the obligor should faithfully account for the funds received by him, and that the books and papers of the railroad company should be evidence of the matter therein contained.

The answer of Worthen denies the charge of the bill that he had failed to account; and this charge of the bill is not sustained by any proof. The deposition of R. B. White, the accountant of the company, with statement of the full account produced by him, shows that it was furnished altogether from the books of the company.

So that the right of the complainant was remediable at law appears--

( a. ) The railroad company had all of the evidence of their claim in their own hands.

( b. ) The production and proof of the items of their claim was not necessary, because dispensed with by the very terms of the bond.

( c. ) The actual amount of this claim having thereby been accurately ascertained by the complainant from the proofs in his own hands, and that amount stated in his bill, no accounting with the defendant was needed to ascertain it again.

Where there has been an " account stated" between the parties no bill for an account will lie. (1 Daniel's Chancery Practice, 665.)

" It does not, however, seem to be necessary to aver that the account was settled upon a minute investigation of items, a general agreement or composition will be sufficient." ( Ibid, 665-6.)

There the parties had taken the precaution, by a careful provision in the bond, to make the " books and papers in the office of the company" , the arbiters of the amount. And let it be observed that every item of the account, as established by the commissioner here, was ascertained by Mr. White, the accountant of the company, from the " books and papers" of the company, without one particle of extraneous evidence.

Second. On the merits of the claim the decree is erroneous, and should be reversed.

The bill avers that a balance of $1,140.39 remains due and unpaid from the agent, B. H. Worthen.

(1.) It is insisted by the company that its books and papers show this amount to be due.

That Worthen did not make certain returns to the company, which might have accounted for this balance.

Worthen's answer denies this charge of the bill, and he insists that although the books and papers of the company are under the provision of the bond to be prima facie of what appears in them, they are not evidence of what does not appear, and he having denied by his answer the charge that he had failed to make return, by his deposition in the cause he proves that he did make the return, and there is no proof to the contrary, except the fact that the return does not appear in the company's office.

(2.) This bond was executed on the 13th January, 1875, and the liability of the surety, Vilwig, began then.

In stating the account against the agent, the first item is a balance against him on the business of December, 1874, of $2,492.97, and to this balance of 1874, is applied the money paid in by the agent to 30th January, 1875, of $1,104.15.

Now while this may be all right as between the company and the principal, who was their agent, yet it is all wrong, so far as John Vilwig, the surety is...