Vilwig v. B. & O. Railroad

Hinton, J., delivered the opinion of the court: The bill charges that this company, a short time prior to January 13, 1875, appointed one B. H. Worthen its agent in Winchester; that the scope of his agency extended from Har [454] per’s Ferry to Strasburg, subject to subordinate agencies at certain intermediate points on the line of the road. That Worthen gave bond on the 13th January, 1875, with (the appellant) John Vilwig as his surety in the penalty of $3,000, conditioned for the faithful performance of his duties as such agent. That Worthen’s agency terminated on the 10th March, 1875, and that there was then due to the company a sum “of not less than $1,140.39 with interest, &c., after allowing all credits.” The bill also alleges that Worthen had received as agent of the company large amounts of money for which he had not accounted, and that no full settlement could be had with him until he should make a full disclosure on oath as to “ the receipts and credits ” during these periods. It then prays for a discovery, an account, and for general relief. In May, 1879, more than three years after the plaintiff had been required by the court to furnish the defendants with copies of all papers pertaining to the office of the agent at Winchester, during the period covered by the bond of Worthen and Vilwig, for the purpose of aiding them in making their answer, and more than two years after an account had been ordered, Vilwig filed an answer, which is not sustained by the proofs however, in which he reserves the right to demur to the bill. And in November, 1883, more than eight years after the filing of the bill, Worthen filed an answer in which he demurs to the bill, “pleads want of jurisdiction in the court,” and denies that any discovery is needed from him or that he had at any time received any money as agent for which he had failed to render a full account. Now, assuming for the purposes of the case, what is certainly not beyond dispute, that it was competent for the defendant to plead to the jurisdiction of the court at the time he did, and after he had submitted to its jurisdiction for so long a time, and in some instanses invoked its powers, we proceed to consider the first error assigned upon this appeal, viz: The bill should have been dismissed for want of jurisdiction. The bill in this case, it will be observed, is not a technical bill of discovery, or, as it is [455] sometimes called, a pure bill of discovery, that is, a bill filed for the purpose of enforcing discovery in aid of proceedings before some other tribunal, but is a bill for discovery and relief; that is, it is a bill in equity calling for a discovery. In this sense, “ every bill in equity ” may properly be deemed a bill of discovery, since it seeks a disclosure from the defendant, on his oath, of the truth of the circumstances constituting the plaintiff’s case, as propounded in his bill. 2 Story’s Eq., § 1483. The bill in this case not being then the technical bill of discovery, the cause did not necessarily terminate with the failure to obtain the discovery, and it was competent for the court, the bill being for an account as well as a discovery, to go on and determine the matter of controversy, if an account was needed for a proper decision of the case. For, as courts of equity have jurisdiction in the case of trustee and cestui que trust, where the cestui que trust demands an account of moneys received under the trust under the general equity for enforcement of trusts, so “a corresponding equity exists as against an agent or steward, or a person in any similar character, who is bound by his office to render regular accounts. And if he fails to render such accounts, his employer will have an equity, arising out of the agent’s failure of duty to have the accounts taken in the court of chancery, where the evidence may be supplied by discovery on oath.” “This equity does not originate,” says Adams, “in the mere want of discovery, which will not * * confer a jurisdiction for relief, but in the additional ingredient, that such want has been caused by the defendant’s fault.” Adams’ Eq., §§ 220-221. In Coffman v. Sangston, 21 Gratt. 263, this court said: “The jurisdiction of courts of equity in matters of account involving the transactions and dealings of trustees and agents is now well established. Hot that the bare relation of principal and agent justifies the interference of the court in every case, but whenever it appears that a discovery is necessary, or that there are mutual accounts between the parties, or the remedy at law is not plain, [456] simple and free from difficulty, the equitable jurisdiction attaches.” Zetelle v. Myers, 19 Gratt. 62; Segar v. Parrish, 20 Gratt. 680; Simmons v. Simmons’ Adm’r, 33 Gratt 451. Within this category the case in hand clearly falls. It is a case requiring an investigation of the complicated account of an agent occupying a position of confidence and trust, charged virtute officii with the duty not only of keeping but of rendering regular accounts, and who was the custodian of most, if not of all of the papers and vouchers which showed the receipts and disbursements of his agency. In such cases the remedy at law is not as plain or free from difficulty as it is in equity, and this is strikingly illustrated by the case of Richmond & Petersburg R. R. Co. v. Kasey & als., 30 Gratt. 220, where, the action being covenant, both parties found it necessary to have the account taken before a commissioner. In view of what has been said, we cannot doubt that the court of equity properly had jurisdiction o£ the case. The next and only other assignment of error is that the decree is erroneous because, as it is said, an item of $1,104.15 was improperly applied to the partial extinguishment of the balance due on the account of Worthen for the month of December, 1874, instead of being applied to the default occurring between the 13th January, 1875, the date of the execution of- the bond and the termination of the agency. It is argued that as that sum was passed to the credit of the agent on the 30th January, 1875, it must be so applied as to that extent to exonerate Vilwig. This argument is founded upon the assumption that this amount was paid to the company in money on that day, and, therefore, during the period for which Vilwig was liable. This, however, is not the fact; for an inspection of the credits that make up that sum and of the agent’s return to the company conclusively establishes that they consisted not of money, hut of vouchers for moneys actually paid out by the agent before the bond was executed and before, therefore, there was any liability on Vilwig; and that these very vouchers were forwarded to the company [457] before the execution of the bond, although in accordance with the custom of the company they were not passed to the credit of the agent until they had been approved and at the end of the month. The supposition upon which the argument was rested being unfounded, the objection can be of no avail. The decree of the circuit court is plainly right, and must be affirmed. Decree affirmed.