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position of vendor as between him and his cestuis qué trust. The "due proportion" of the purchase money which is or should be paid to him before making a deed is not purchase money, as between a vendor and purchaser, for which a lien arises when unpaid. It is a sum made payable by the statute, in order that the occupant may not evade his just proportion of the expenses incident to the purchase of the town site.

But the whole arrangement made between the plaintiff and Ginaca was a plain departure, on the plaintiff's part, from the course marked out by the statute. Berry, as trustee, had ao right to sell the vacant lands to any one, except in the mode and for the purpose provided in the statute, (section 3863, ante,) and his whole agreement with Ginaca was illegal. The duty of the trustee in this case, it seems to us, was plain. When, after the entry of the town site, the inhabitants declined to furnish the purchase money, the trustee might doubtless obtain the money from some other source, and so complete the purchase. But the entry having been made as trustee, and the payment likewise, he could not lawfully deal with the property in any other way than the law pointed out to trustees. The transaction which actually took place being illegal, no lien could arise out of it. No person can acquire a lien founded upon his own illegal or fraudulent act or breach of duty. Randel v. Brown, 2 How. 406.

Since the complainant has no lien to enforce, and the establishing and enforcing of that alone gives him any

standing in a court of equity, can he now have a decree against the two defendants Ginaca and Gintz for the money alleged to be due from them, they having made default? It is true, as the plaintiff contends, that the defendants Friend, Terry, and Doane have no concern in this after the lien is defeated. But it may be a question of jurisdiction. Had the plaintiff filed a bill to recover money due from Ginaca and Gintz, simply, his bill would have been dismissed, his remedy at law being plain and adequate. In such a case the suit would not be within the jurisdiction of a court of equity, and, although default should be made, the court would be without jurisdiction to make a decree. Jurisdiction of a subject matter not

properly of equitable cognizance cannot be thus conferred. Consent of parties cannot do it.

How is it when, as here, the plaintiff alleges in connection with his legal cause of action some equitable matter, which equitable matter is not sustained by proof? Can he have a decree under such circumstances for the legal matter? “Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law." Rev. St. § 723. It is an established rule that where a court of equity has properly acquired jurisdiction over the subject for a necessary purpose, it is the duty of the court to proceed, and do final and complete justice between the parties, where it can as well be done in that court as at law. Taylor v. Insurance Co. 9 H. 405. In that case, after requiring a specific performance of an agreement to insure, the court went on (there having been a loss before the policy was delivered) and gave final relief on the policy. So, if a discovery is sought in aid of a claim purely legal, it may be obtained in a court of equity, which will afterwards go on and give the legal relief and determine the whole matter in controversey. But in such case, if the answer of the defendant discloses nothing and the plaintiff supports bis claim by evidence in his own possession, “the established rales limiting the jurisdiction of courts require that he should be dismissed from the court of chancery” without prejudice as to the legal cause of action. Russell v. Clark's Ex'r. 7 Cranch, 89; Story's Eq. $ 74.

In the opinion of Mr. Justice Woodbury, it was the design of our fathers in that clause of the judiciary act (now section 723, Rev. St.) not to permit proceedings to go on in chancery if it turned out in the progress of the inquiry that full and adequate relief could be had at law. Pierpont v. Fowle, 2 W. & M. 33, 34.

In Graves v. Boston Ins. Co. 2 Cranch, 419, it appeared that Graves had taken an insurance in his own name upon goods belonging to the partnership, while really intending to insure for the benefit of his firm. The suit was by the partnership to correct the alleged error in the policy, and to

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recover the insurance. The court denied the only equitable relief asked, viz., the correction of the alleged error in the policy, and concluded by saying that “as the remedy of the plaintiff, Graves, on the policy, to the extent of his own interest, is complete at law, the decree of the circuit court dismissing his bill must be affirmed.” Now, in that case, if the plaintiffs had obtained the equitable relief asked, the court of equity would have gone on and given full relief upon the reformed policy; but, the equitable relief being denied, nothing remained but a legal right capable of adequate redress at law, and the plaintiffs were dismissed to that forum. This case is cited in Hipp v. Babin, 19 How. 271, 278, to show that relief has been denied “in cases in equity where the remedy at law has been plain, adequate, and complete, though the question was not raised by the defendants in their pleadings, nor suggested by the counsel in their arguments;" because it is a question of jurisdiction, and "no admission of parties can change the law, or give jurisdiction to a court in a cause of which it hath no jurisdiction;" and, further, whenever a court of law is competent to take cognizance of a cause, the plaintiff must proceed at law, “because the defendant has a constitutional right to a trial by jury.” “In the courts of the United States it (this question) is regarded as jurisdictional, and may be enforced by the court sua sponte, though not raised by the pleading nor suggested by counsel." Parker v. Cotton & Woolen Co, 2 Black, 545, 550. Where the remedy at law is adequate, the party seeking redress must pursue it. In such case the adverse party has a constitutional right to trial by jury.” Id. 551.

It being a question of power to make a decree, the fact that Ginaca and Gintz have made default cannot give the court jurisdiction to decree in a case not of equitable cognizance. It seems to us clear that whenever no equitable relief is given the plaintiff can have no standing in a court of equity; for, in such cases, the only ground upon which a court of equity proceeds to give legal relief is that the party was compelled to come to the court of equity, and ought not to be deprived of the legal remedy incidental to his equitable claim. When,

therefore, the court determines that the plaintiff had no case for its equity side, it can do nothing, if it proceeds, except make a decree upon a legal matter. When the plaintiff is dismissed as to his equitable matter, it amounts to an adjudication that he has an adequate remedy for his legal claim in a court of law, and consequently that he never should have come with his suit into a court of equity.

Bill dismissed without prejudice to the complainant's legal cause of action.

SAWYER, C. J., concurred.

MARYE 0. STROUSE.

(Circuit Court, D. Nevada. January 20, 1880.

1. AGENT.

An agent to buy cannot be the seller. 2. BROKER'S CONTRACT.

An ordinary broker's contract for the purchase of mining stock, each share of which has an independent value, is not an entire con

tract. 3. SAME-CUSTOM.

A custom of charging customers an arbitrary sum for telegrams, usually much more than the actual cost, if it can be considered reasonable, ought to be established by very satisfactory proof, and it should

appear that both parties knew of it. 4. ACCOUNT STATED-BROKER's Pass-Book.

Under the circumstances of this case, the balances struck in a

" broker's pass-bookheld accounts stated. 5. SAME—INTEREST-APPROPRIATION.

Where a statute does no more than prohibit a recovery of interest in excess of 10 per cent. unless the contract is in writing, but does not otherwise make the rate of interest unlawful, interest in excess of that rate may be included in an account stated, and money paid on account by the debtor may be applied to the payment of such 'interest by the reditor in the absence of any appropriation by the debtor.

Kirkpatrick & Sterens and Lewis & Deal, for plaintiff.
Jonas Seely, for defendant.

HILLYER, D. J. This is an action to recover a balance alleged to be due upon a mining-stock account. The complaint alleges the purchase upon defendant's request of a large amount of mining stocks; the expenditure of money for telegrams in connection with the buying and selling of the stocks; the advancing of money on purchases, and the agreement of defendant to pay interest thereon at the rate of 2 per cent. per month. It also contains a number of counts upon accounts stated. The answer puts in issue the purchase of 500 shares of Franklin stock, at three dollars per share; denies the correctness of the charges for telegrams, and any agreement to pay interest at the rate of 2 per cent. per month. These are the only issues raised. The facts bearing upon each point can be best stated as it is decided, both for convenience and to avoid repetition. The facts in regard to the purchase of the Franklin stock are that the defendant requested the plaintiff's assignors, Frankel & Block, stock brokers, to buy for him 500 shares of Franklin, at a limit of three dollars per share. Frankel & Block purchased in the San Francisco stock board next day, in the usual way, 125 shares of Franklin, that being all that could be obtained at three dollars per share. At the same time Frankel, one of the members of the firm, being a large owner of Franklin stock, turned over to Frankel & Block, for the purpose of filling the defendant's order, 375 shares of Franklin at three dollars per share, which were then applied by the firm to that purpose, and were charged to the defendant with the usual commissions and telegrams. The defendant never received the stock into possession, and never assented to this mode of filling his order; nor did be know it had been so filled until about the time of bringing this suit.

The rule of law applicable to this state of facts is settled. An agent employed to buy cannot become the seller, in the absence of his principal's assent, given upon full knowledge of the facts. Frankel & Block, as agents of Strouse to purchase, could not be the sellers. It is not claimed that there was any fraud in fact here, but evidence establishing the transfer of the stock to have been bona fide, and for a fair

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