Mississippi Compress & Warehouse Co. v. Levy

Whitexeld, C. J., delivered the opinion of the court. The reporter will set out the bill of complaint in full, in order to a clear comprehension of our opinion. Without special reference in this opinion to the particular allegations of the bill, we summarize by saving that the gravamen of the bill is as follows: That the railroad company and the compress com789 pan(y, for their mutual convenience, entered into a joint traffic arrangement whereby cotton shipped from different points along the line of railway to Jackson for compression, before being shipped through to its destination, should be delivered into the compress yards, the railroad company having’ no place wherein cotton could be delivered. Upon the cotton being so delivered, the compress company would issue to the railroad company compress tickets, which tickets stood not for any special hales, by marks and numbers, but for any bales of average weight and quality; and the railroad company so receiving such compress tickets would, when the consignee came with his bill of lading, demanding his cotton, deliver to him no actual cotton at all, nor the particular bales called for by marks and numbers in the bill of lading, but only the aforesaid compress tickets. This suit is for a certain number of bales short on the season’s dealing. The bill avers what has been stated with great clearness arid particularity, and then proceeds to charge that the cotton short is due complainants by the defendants — the railroad primarily, and the compress company perhaps secondarily —and that the complainant is wholly ignorant of how the shortage occurred; that the respondents both knew all about it; and that their books would show, as between themselves; and discovery is prayed of the facts in the case touching the delivery of this cotton, so that the liability may be placed where it belongs. The uncertainty and confusion as to which one of the defendants is liable is averred by the bill to be directly chargeable to the respondents, as the result of their joint traffic arrangement, and the conduct of each under and in pursuance of the same. The bill charges further, in the case in which the Alabama & Vicksburg Railway Company is defendant, that the compress company actually executed a receipt acknowledging its liability for the cotton in that suit embraced, provided only it should turn out, on the checking over of its books, that the compress had got the cotton during the season. This was a clear acknowledgment of the duty of the compress company [790] to make the investigation, furnish the discovery” and settle, or not, 'accordingly. This'is the only distinguishing difference between the allegations in the two bills. Both bills charge, in effect, that these respondents engaged in a battledoor and shuttlecock performance as to their liability; each claiming that the other was responsible, and each denying its own liability.' There were demurrers to the original bills, which were sustained, and amended bills w'ere filed, and the demurrers to these amended bills were overruled,’ and from this decree these ap-' peals were prosecuted. ‘ The jurisdiction of the chancery court is put, in these bills, upon the necessity for discovery, the embarrassed and inadequate nature of the remedy at law, and upon the further distinctive ground that these respondents, having, for their own mutual convenience, changed the ordinary rulé as 'to delivery tinder the bills of lading calling for specific bales by marks and numbers, by having' entered into the aforesaid traffic arrangement, have brought about a status, as between themselves and shippers of cotton, wherein there clearly exists, as between themselves, a privity which renders them liable to such shippers.' Are the bills maintainable?' Bank v. Phillips, 71 Miss., 51, 15 So. Rep. 29, is entirely inapplicable here. There was no privity whatever between the defendants in that case. 'That was a fishing bill, pure and simple. George v. Solomon, 71 Miss., 168, 14 So. Rep., 531, is also inapplicable. In that case the déféndants were not only not in privity, but stood- in distinctly antagonistic relations to each other as to the liability involved. In Supervisors v. Alford, 65 Miss., 69, 3 So. Rep., 247, 7 Am.St. Rep., 637, Campbell, I., said: “Had the bill been so drawn-as to show that the facts are unknown as to which set of sureties are iiable, the jurisdiction of chancery would have been un-dóubtéd.” - Citing Gay v. Edwards, 30 Miss., 218; Tate v. DeSota, 51 Miss., 588.' "That was a'suit in equity to establish liability between two set's df sureties on an official bond of Alford- as treasurer of' Lauderdale county. There was nO priv [791] ity between those two sets of sureties, and this is a stronger case than that in that respect. In other words, that case rested simply upon the confusion as to which set of sureties could be held liable, and'the necessity for an accounting to so ascertain; and what the court held was that those two facts would give jurisdiction, but that the bill in that case not having, avelrred ignorance as to which set of sureties .was liable, but,, on the contrary, expressly showing where the liability ought, to have been placed, jurisdiction on those particular grounds was. not shown in that case. In these cas'es the bills not only aver this very want of knowledge as to which of these two defendants is liable, and not only pray for a discovery to be made by them of the facts peculiarly within their knowledge, which would disclose which was liable, but they aver a state of.facts from whidh it is clear that these defendants are not to be charged as occupying a distinct and independent attitude towards each other, but as strictly in privity one with the other, so-.far as the delivery of this cotton is • concerned, as to the liability to complainant. The bills present a clearer and stronger case for the interposition of equity than was the Alford case or the case of Gay v. Edwards, supra. In State v. Brown, 58 Miss., 840, the court quoted this expression from the case of Gay v. .Edwards--with approval: “There might have been circumstances under which Wynne alone might not have been liable for the money placed in the hands of Cay, and Gay was certainly not hablé for more than he received. It'was necessary for the complainant to go into' equity for, a discovery of the amount of the fund due from Wynne,' and for an account and 'diStribittionN And the court well observed: “It is not true that equity has no jurisdiction of a cause because there is a remedy at law. If the remedy is inadequate to afford full and effectual relief, equity will afford relief, though the complainant might have sued at law.” In Tate County v. DeSoto County, 51 Miss., 588, this court said: “When several parties are interested in the account [792] to be taken, to prevent a multiplicity of suits, resort may be had to a court of equity. 1 Story Eq., ch. 8, sec. 446, et seq." We uphold the right to equitable relief in these cases upon these grounds: First and specially. That the allegations of these bills make a case of clear privity between these defendants. They are not to be treated and dealt with separately and independently of each other, but they are to respond from the basis of privity which they have established for themselves by their joint traffic arrangement. If they chose to change the original rule as to place and mode of delivery of specific bales by marks and numbers, so that the railroad company could not deliver cotton at all to the holder of the bill of lading, but only to the compress company, receiving from the compress company and delivering to the holder of the bill of lading compress tickets calling, not for the specific bales called for by the bill of lading, but for an equal number of bales of average weight and quality, and to do all this simply for their own mutual convenience and profit, they have established thereby, as between themselves, a privity which they will not be allowed to repudiate when called on by holders of bills of lading to respond. Second. The equitable right to discovery is another ground for the jurisdiction, especially in view of the fact that the whole confusion and uncertainty as to liability was brought about by the joint action of these defendants. Third. If there was a. remedy at law, it is'clearly an embarrassed and inadequate one. - Wherefore the decrees in both cases are affirmed, and the causes remanded, with leave to answer within sixty days after the filing of the mandate in the court below. Affirmed.