Kendallville Refrigerator Co. v. Davis

Moran, P. J. The demurrer admits the contract set out in the bill and the dealings alleged in pursuance of said contract, that complainant is ignorant of the names of parties for whom refrigerators have been constructed by defendants, and of the number, dimensions and location of such refrigerators constructed under complainant’s system, and the contract contains an agreement that defendants shall furnish such information to complainant. Defendants then, by contract, undertook to account, and without such account it can not be ascertained how much defendants are indebted. Such circumstances entitle complainant to an account from the defendants and a disclosure or discovery of the matters which, by their contract, they agreed to inform complainant of. McKenzie v. Johnson, 4 Madd. 198; Pope v. Owsley, 27 Fed. R. 100. “It is one of the usual grounds of equity jurisdiction to discover and compel an account of funds wrongfully concealed and withheld from the real owner.” Russell v. Madden, 95 Ill. 485. Where a duty rests upon the defendant to render an account and where the matters for which an. accounting is sought are peculiarly within the knowledge of the defendant and discovery is sought, equity will assume jurisdiction to compel the discovery, and after a disclosure will retain the bill to grant complete relief. Story’s Eq., Vol. 1, Secs. 456 to 459; Russell v. Clark’s Ex’rs, 7 Cranch, 66; Halsted v. Robb, 8 Porter (Ala.), 63. It is not seriously contended, that equity would not have this jurisdiction before the passage of our statute giving the right to compel an adverse party to any civil action to testify as a witness on the trial, and giving the courts power in actions pending before them to compel the production of books and papers containing evidence pertinent to the issue. Such legislation does not deprive equity of jurisdiction to compel discovery where such jurisdiction would be exercised before the statute, particularly where there is another ground of jurisdiction, to wit, account, as there is in this bill, A strict bill of discovery to obtain evidence to be used in an action at law, may be abrogated by implication, but even that is doubtful. The jurisdiction in equity was established at a time when parties were incompetent as witnesses. Statutes rendering parties competent do not necessarily abrogate such jurisdiction. It is said by the Supreme Court that the rule is well recognized that where equity has jurisdiction and an act of the Legislature confers like jurisdiction on a court of law, it becomes concurrent in the two courts. * * * Unless there are prohibitory or restrictive words applied, the uniform interpretation is that they confer concurrent and not exclusive remedial authority.” McNabb v. Heald, 41 Ill. 326. It is expressly held in West Virginia, that a statute allowing a court of law to compel a discovery upon oath in answer to interrogatories filed wherever it would be compelled upon a bill of discovery, did not abolish bills of discovery or deprive courts of equity of that ancient jurisdiction. Russell v. Deckeschied, 24 W. Va. 61; See also Elliston v. Hughes, 1 Head (Tenn.), 225; Cannon, v. McNabb, 48 Ala. 99; Millsaps v. Pfeiffer, 44 Miss. 805; Shortwell v. Smith, 20 N. J. Eq. 79. The court erred in sustaining the demurrer and dismissing the bill, and the decree will be reversed and the case remanded for further proceedings. Reversed and remanded.