J. K. Orr Shoe Co. v. Edwards

Potter, J., delivered the opinion of the court. (After stating the facts as above). While growing out of the same subject-matter, the facts involved in the suit presented by the bill of complaint in this case are entirely different from the facts relied upon by the appellant in its suit in the circuit court of Jones .county against the appellee for the value of the shoes in question. The facts in controversy in the first suit grew out of ■ the original contract of sale and the release pleaded by the defendant. This matter was resolved in favor of the defendant, and cannot be reopened. The suit at bar arises from another cause. The shoes in question were adjudged the property of appellant in the first suit, and it was for the conversion of this property that the second suit was brought. The bill of complaint charges a conspiracy between the two defendants in this suit, McKinley and Edwards, to defraud the complainant. The bill alleges that prior to the original suit the complainant in this case knew nothing about this fraudulent conspiracy, and did not know about same until within six months of the filing of the present suit. These matters were not in controversy in the first suit, and could not be in controversy because the complainant knew nothing about them. The statute of limitations does not bar the complainant because it alleges that, although exercising reasonable diligence, it did not discover the fraud upon it until within six months [547] previous to the filing of this suit. The statute, therefore, did not begin to run until the discovery by the complainant of the fraud. This is a proper suit to invoke the jurisdiction of the chancery court. There was a prayer for discovery and a prayer for an accounting, and there were charges of fraud, and the remedy at law is not “full and adequate and complete” as is the remedy afforded by the chancery court in this case. Reversed and remanded.