Miller v. United States Casualty Co.

Emery, V. C. (after statement of issues). Complainant’s right of action, as disclosed by the bill and proofs, is a purely.legal right, and in a court of law depends for its establishment upon complainant’s proving three things—first, defendant’s contract to compensate him, according to the value of his work, if he secured business for defendant; second, that he secured or assisted in securing the business of the Kentucky company, and Hik’d, that this business was valuable to the defendant. Sufficient proof- of all of these three facts would be necessarjr to maintain his case at law. Defendant’s plea does not reach to a denial of the whole of complainant’s legal case, but to two of the facts or parts which constitute this case, viz., a denial that complainant secured the contract and that the contract was profitable. Both of these issues will be issues in the action at law to be brought. Had the plea been set down for hearing, my present view is that it must have been overruled, and mainly for the reason that the plea sets up as a bar to the discovery, in aid of the action at law, a denial which is a denial of [114] only one of the several grounds which together constitute the basis of the legal action, and does not go to the whole ground of action. At an early day it was laid down by Lord Thurlow, in the leading case of Hindman v. Taylor 2 Bro. Ch. C. 7; S. C., 2 Dick. 651, that a plea which set up matter which went to the whole cause of action, and was a legal bar to the action, was not a good plea to a bill for discovery only, as that would put the trial of the legal right in the court of equity. This decision has never been expressly overruled, but its soundness has been vigorously attacked, and later eases have undoubtedly qualified it, to the extent of allowing, in some -cases, a plea to a bill of discovery to set up a denial of complain.ant’s title or interest. The reason is that otherwise, by complainant’s false or unfounded claim of interest or title as the '.basis of either an existing or proposed action, he might have a ■discovery of transactions with which he had, in fact, no concern, and for the disclosure of which the false or unfounded ■claim was asserted for ulterior purposes. Wigr. Disc. *151f, &c., and cases cited; Story Eq. Pl. § 821. The cases, however, in which the pleas were sustained as denying complainant’s interest or title were either cases in which equitable relief as well as discovery was sought, e. g., denials of partnership on bill for account, and in which the issue raised by the plea was properly triable in equity, or cases in which the plea went to the whole issue triable at law, as the basis of the legal action. The late case of Robertson v. Lubbock, 4 Sim. 161, 180 (Vice-Chancellor Shadwell, 1881), cited in Wigr. Disc., supra, states the rule in cases like the present. The vice-chancellor says (at p. 180) : “If a right of action is founded upon a variety of circumstances put together, a plea which attempts to show that the action cannot be maintained by confessing and avoiding some of the circumstances and denying the rest, cannot be good, for the reason that it, in effect, takes to pieces all the several grounds which, put together, are asserted as the grounds upon which the action is maintainable, and by confessing and avoiding some and traversing others, it reduces the plaintiff to the necessity of proving in a court of equity, without a discovery, that he has a right to support that action.” In other words, the plaintiff in an action [115] at law has the right to the trial of the whole right of action or the whole bar set np, together and in a single court, and if a legal bar to the action is a good plea to the bill for discovery, the plea must extend to the whole right of action or to all the eircumsances which, together, constitute the right of action. Chancellor Walworth, in Sperry v. Miller, 2 Barb. Ch. 632 (1848), followed Hindman v. Taylor, and held it good law to its full scope, overruling a plea of payment of the legal claim as a bar to discovery. Our own decisions are silent upon the point, but the validity of a plea of legal bar to the action cannot be extended beyond the extent indicated in Robertson v. Lubbock, supra, and, under this rule, the defendant’s plea would probably have been overruled. The validity of the plea is not, however, a question directly in issue now, and it is only referred to because it has a bearing upon the question of the status of the case upon the entire record which is now presented for decision upon the proofs. Complainant, by replying to the plea, has, for the purposes of this suit, admitted its validity, and the question now to be determined is whether the defendant has established its plea by the proofs. The burden of doing this rests upon the defendant. 1 Dan. Ch. Pr. (6th Am. ed.) *698. And where a plea contains several distinct averments or allegations of fact, all of the allegations must be supported by the proofs or the plea will be overruled as false. Dows v. McMichael, 6 Paige 139, 144, cited and approved in Flagg v. Bonnel, 2 Stock. 82, 85. The reason is that in this court no repleader is awarded where a cause comes to hearing upon an immaterial issue joined on a plea, and' the court, therefore, never inquires as to the materiality of the allegations contained in the plea if the complainant admits the validity of the plea by replying to it. If the truth of the plea is established by the proofs, complainant’s bill must be dismissed, although the matters stated in the plea contain, in fact, no valid defence to the suit, and, on the other hand, if the defendant fails in proving the truth of his plea upon the hearing, the plea must be overruled as false, and the complainant will be entitled to a decree according to the ease stated by the bill. Dows v. McMichael, supra (at p. 144). And upon the hearing upon the plea the question therefore is as to the [116] truth of the several allegations in the plea, and if the truth of every distinct allegation is not established the plea must be overruled as false. Ibid. See also 1 Dan. Ch. Pr. (6th ed.) 695, 697. In the present case the defendant has wholly failed to establish the allegation of its plea that the business transferred was not valuable, or to offer any proofs upon that subject. This is a material fact, solely within its knowledge, and having chosen to tender this issue in the plea, it was bound to sustain it as well as the other issue tendered, and its failure to do so will not be remedied by proofs upon the other allegations of the plea that the complainant did not procure the contract. This question of procuring the contract was one of the issues which should properly be tried in the action at law; the proofs which are produced upon the question are such as fairly entitle the complainant to its submission to a court of law; and the decision of this court should not be expressed thereon unless necessary for the decision upon the plea. Especially should this opinion not be expressed where the plea, if brought to a hearing, would probably have been overruled, as attempting to bring for the'adjudication by this court that which was altogether an issue of fact to be tried at law as one of the circumstances on which the plaintiffs legal action was based. Eor this reason therefore, that the defendant has failed to sustain all the material allegations of the plea, it must be overruled as false and not sustained by 'the proofs. Two objections of defences to a decree for discovery not presented by the plea were made at the hearing—first, that the contract or agreement set up by complainant was, as appears by the proofs, not made by the company. This objection Cannot be entertained, because it is not an issue under the plea, which moreover admits the agreement. The second objection was that no decree for discovery should be granted, the courts of law, in which action is brought, being, by the later statutes, authorized to compel the necessary discovery in aid of plaintiffs action. The answer to this objection is twofold. In the first place, it is settled in this state that the statutes conferring jurisdiction for discovery upon the law courts have not had the [117] effect of divesting the courts of equity of their ancient and original jurisdiction for discovery. Howell v. Ashmore, 1 Stock. 82 (Chancellor Williamson, 1852); Shotwell v. Smith, 5 C. E. Gr. 79, 81 (Chancellor Zabriskie, 1869), approved and followed in Sweeny v. Williams, 9 Stew. Eq. 627, 629 (Errors and Appeals, 1888). In the second place, the objection cannot properly be raised at the hearing upon the truth of the plea. Under the settled practice, the complainant, if the plea is not well founded in fact, is entitled, without further proof, to a final decree to the extent of the court’s jurisdiction to grant relief upon his bill. Flagg v. Bonnel, 2 Stock. 82, 84 (Chancellor Williamson, 1854); 1 Dan. Ch. Pr. (6th ed.) *697; Story Eq. Pl. § 697. The cases, in other courts cited by counsel in which the exercise of equitable jurisdiction for discovery has been refused, because it could be obtained in the law courts under the later statutes, were principally, if not wholly, cases where the question arose upon demurrer. The defendant having failed to sustain its plea, complainant is therefore entitled to a decree upon his bill to the extent of the court’s jurisdiction. In the present case, this extends to the discovery only, for the court has not jurisdiction to decree' relief upon a purely legal claim under the general prayer for relief. The effect of adding this general prayer was to malee the bill a bill for relief as well as discovery (2 Dan. Ch. Pr. *1557), but jurisdiction to decree relief upon a purely legal claim cannot be exercised, if it is based only on the circumstance that the parties have failed to raise objections to the jurisdiction, and, so far as it is possible for the forms of pleading to effect it, have consented to the jurisdiction for relief. The complainant is entitled to the discovery sought by his bill, and an order will be advised overruling the plea as false, and directing the defendant to answer the interrogatories.