Craig v. McKinney

Mr. Justice Sheldon delivered the opinion of the Court: It is first assigned for error that there is nothing shown in the bill to bring the case within the jurisdiction of a court of equity. That a court of chancery has jurisdiction in matters of account, can not be questioned; and while it is not every account which will entitle a court of equity to interfere, and that it must be such an account as can'not be taken justly and fairly in a court of law, we can not doubt that, from the difficulty of investigating the accounts here involved, this is a proper case for chancery. It is next assigned for error, that the court erred in overruling defendant’s plea. The bill was one for an account of defendant’s doings as attorney in fact of complainant, under and by virtue of the power of attorney described in the bill, and for the payment and delivery over of what was in his hands as such attorney. Although, in the prayer for relief, it is asked that discovery be made of what had been done by virtue of the power of attorney, or under or by virtue of any other power or authority whatsoever, and that an account be taken of all the doings of defendant concerning the property of complainant, yet the averments of the bill are, that all the property charged to have come into defendant’s hands came into his hands as such attorney in fact, and there is no mention whatever that any other power or authority was ever given to defendant, or that he ever did or received anything under or by virtue of any other power or authority. So that the bill must be taken to be one only of the character above mentioned. Whatever, then, showed that there had been an accounting and settlement by defendant with complainant, in respect of the transactions of defendant, as her attorney in fact, under the power of attorney, and that what was then found to belong to complainant was then delivered over and received by her, and that she subsequently entered into a new' arrangement, and assigned and conveyed her property to the defendant in trust, by her deed of conveyance, would seem to present an apparent defense to the case made by the bill. This the plea did in substance show. We think it may be considered as substantially a plea of a settled account. It is urged, in support of the ruling of the court, that the plea was not sworn to. But no such objection was made to the plea. There was a motion to strike out the plea, but the reasons assigned in support of the motion were, that the plea was' no bar to the relief prayed for, and that it did not fully answer the bill. The court seems to have treated the motion as one to set down the plea for argument, and to have regarded the plea as being so set down; the order of the court reciting that the plea coming on to be argued, it was held to be insufficient, and the same was therefore overruled. We think the ord »■ of the court may be taken as one adjudging the plea to be insufficient as a defense, on its being set down for argument. The rule is, if a plea is not verified by the oath of the defendant, the complainant may move to set it aside, or to have it taken off the files for irregularity. The defect is regarded as one of form, and the objection comes too late, and can not be taken advantage of at the hearing as to the sufficiency of the plea. Heartt v. Corning, 3 Paige, 566; Bassett v. Company, 43 N. H. 249. We are of opinion there was error in overruling the plea. It is farther assigned for error, that the court overruled the exceptions to the master’s report. The taking of the account by the master was exporte, without any notice to the defendant. As an authority that such a notice is not required in cases where a default has been taken and a reference is made, Moore et ux. v. Titman, 33 Ill. 358, is cited. The rule there laid down was correct as applicable to such a case as that, where a bill to foreclose a mortgage had been taken as confessed, and reference to the master to ascertain the amount due, and report to the court. The duty of the master there was one of mere computation from written evidence of indebtedness in the case, admitted by the bill having been taken pro eonfesso. Mo reference there was needed. The court might have made the computation from evidence already in the case, and have pronounced the decree. But to extend the rule to all cases where a default has been taken, is not warranted by authority. In 2 Daniels Ch. PI. and Pr. 3d ed. 1152, the author, in treating on this subject, says: “The general rule, that all persons having an interest in the result of the proceedings should have notice of the attendance before the master, extends to cases in which a defendant, after appearance to the subpoena, has allowed the bill to be taken against him pro eonfesso, and a decree to be made for want of an answer.” We are of opinion there should have been, here, notice to the defendant of the taking of the account, so that he might have had opportunity to appear before the master on the reference. The master’s report, and the decree thereon, were manifestly insufficient and erroneous. The master states the results merely of the accounts, as follows: “That the said James P. Craig has received into his hands, including interest, the. amount of $58,999.31-, and that he is entitled to credits, including interest, to the amount of $34,118.63; balance due, $24,880.14; leaving a balance in Ms hands of twenty-four thousand eight hundred and eighty ^ dollars due Mrs. Sarah McKinney by said Craig,” without giving any items whatever. This is no proper stating of an account. The items of the account should in some way appear. When the master reports upon accounts, he generally states the results of the accounts in the body of the report, and refers to schedules as to the particular items. 2 Dan. Ch. Pl. and Pr. 1302. The master should state the facts found by him, and not general sweeping results; but sufficient of the details to show the grounds of his decision should be stated. Herrick, v. Belknap, 1 Williams (Vt.) 673. Where a chancery suit involves matters of account, the items admitted should be stated, so that exception may be taken to the particular items or class of. items. Ransom v. Davis, 18 How. 295. In support of the results of the master’s report, appellee’s counsel, in their printed argument, present an itemized account, of their own making, which corresponds in result with that of the master, and rely upon it as affording a satisfactory explanation of how the master’s result might have been properly reached. In this itemized account they charge the defendant with $33,000, as received in 1866. But the bill states this amount then received as being the precise sum of $31,500, consisting of seven specified items, stating the precise amount of each item. On adding up those items, they are found to be only $29,500, showing a mistake in the bill of $2000 in the statement of the aggregate amount of these items. But the items themselves are to control as to what is their amount, rather than the statement of what their aggregate amount is; so that the averment of the bill must be taken to be, that $29,500 was the original amount received. This allegation of the bill must govern as to extent, even though the proof may show $33,000 was the amount received. The complainant must recover within the limit of her allegations. She can not allege in her bill that defendant received the sum of $29,500, and then make proof that he received $33,000, and recover that amount. She could only do so on amendment of her bill, sb as to make the allegations broad enough to admit the proof within their limit. Here, then, as we understand, is an error in this itemized account, to start with, of $3500. Other palpable errors in this itemized account might be pointed out. But without further dwelling upon it, we may say, that a master’s report which has to depend upon such an account for its support, fails of being sustained. The exceptions to the master-s report should have been allowed: The decree was for the whole amount found due by the master, without regard to the credit of $2000, December 2, 1870, established by the testimony at the final hearing on the master’s report. The prior interlocutory decree, by its sweeping terms, annulled the deed of conveyance and assignment in trust of May 27, 1870, without any allegation in the bill to found it upon. In these respects there was error. The decree will be reversed, and the cause remanded for further proceedings, in conformity with this opinion. Decree reversed.