Swift & Co. v. Memphis Cold Storage Warehouse Co.

Me. Justice BuchaNAN delivered the opinion of the Court. This was an action for damages for breach of a contract of bailment. The bailment was for hire. Swift & Co. was the bailor; the warehouse company was the bailee. The subject-matter covered by the contract was about 6,000 cases, or 2,160,000 eggs. The complainant was an Illinois corporation; the defendant, a Tennessee corporation. The former was engaged in the business of buying and selling meats, eggs, and other products of similar character; the latter was conducting a cold storage warehouse business in Memphis, Tenn. Such was the business of the respective parties at the time of the bailment and the alleged breach of the contract sued on. The bill was met by a demurrer raising the question that the chancery court was without jurisdiction because the action was one to recover unliquidated damages for injury to the property of complainants. This demurrer the court overruled, to which action of the court defendant excepted, and thereafter answered the bill and made demand for a jury to try the issues joined, whereupon the cause was submitted to a jury under issues stated in the charge of the court. At the close of complainant’s evidence in chief, defendant moved the court to dismiss for want of jurisdiction upon the same ground relied on in the demurrer. This motion the court overruled, and defendant excepted, and, thereupon the cause proceeded to verdict, which — 87 — was in favor of complainant and for the sum of $7,151.18. From the decree based on this verdict, defendant appealed and has assigned many errors, the first of which is in substance that the chancery court was without jurisdiction, and that the chancellor was in error in his rnlings to the contrary. The disposition of this assignment of error necessitates a review of Acts 1877, ch. 97, now carried as section 6109', Shannon’s Code, and onr decisions thereon. In the ontset, it may not be amiss to observe that, upon analysis, it is manifest that the act of 1877 extended the jurisdiction of the chancery court to all civil causes of action theretofore triable in the circuit court with three exceptions, and these exceptions were such cases involving unliquidated damages when based on (1) injuries to person; (2) injuries to property; (3) injuries to character. The words “all civil causes of action” as used in the act have been construed by'this court to mean only those civil actions which could have originated in the circuit court; the purpose of the act being to give litigants the option of bringing suits in such cases either in the circuit court or in the chancery court. Simmons v. Leonard, 89 Tenn., 623, 15 S. W., 444. The jurisdiction conferred by the act was concurrent and not exclusive. The act did no more than open the door of the chancery court to a class of eases against which that door had formerly been closed. The door remained closed to the three classes of cases above-noted as exceptions. — 88 — Notwithstanding the apparently plain terms of the act, its practical application has provoked much discussion. Its constitutionality was assailed and sustained in Jackson v. Nimmo, 71 Tenn. (3 Lea), 597. Of it Judge Freeman, in delivering the opinion of the court in that case, said: ‘ ‘ The intention of the legislature is plainly expressed. It is to increase the jurisdiction of the chancery court. That increase is to he effected by giving the chancery court jurisdiction, concurrent with the circuit court, in all causes of action now triable in the circuit court, except injuries to person, property or character, involving unliquidated damages. This statement of what is the intention of the legislature, taken from the language of the act of itself is so clear and plain that we cannot misunderstand it, and find no need of the application of rules of construction. It cannot he made clearer or plainer than the act has made it.” The case last cited was decided at the December term, 1879: At the preceding September term this court had under consideration the case of Ramsey v. Temple, 71 Tenn. (3 Lea), 252. In that case the hill was filed in the chancery court to recover damages of an attorney for ordering an execution held up, from which action it resulted that complainant lost the amount of the judgment on which execution was issued. The court did not in that case pass upon the validity ■of the act, hut held that it should he strictly construed, and, speaking of the case there in judgment, said: — 89 — “The acts complained of are certainly in the nature of torts. ‘An injury to property’ in its broadest sense would certainly include any tort injuring or destroying a chose in action, or rendering it valueless hy defeating or obstructing the plaintiff in. its collection. From the very nature of the acts complained of, the damages are unliquidated and unfixed hy the contract. They may be greater or less according as the extent of the injury may he shown hy the proof; and the character of the question is not changed hy the allegation that the injury complained of has resulted in the loss of the entire debt. This allegation does not render the damages in their nature liquidated or certain. ’ ’ The demurrer to the hill in that case was sustained, and the bill dismissed. In a later case, Williams v. Burg, 77 Tenn. (9 Lea), 459, where a hill was filed to recover damages for breach of a covenant of warranty in a deed, it was said: “It is next argued that the demurrer should have been sustained upon the ground that the action sounds, in damages, and is not such an action as the chancery court had jurisdiction of, even under our act of 1877. If this were true — which, however, it is not — still the chancery court has jurisdiction of even purely legal demands in attachment cases; the ground of attachment in this case being that the defendant is a nonresident. ’ ’ So, in that ease, the jurisdiction of the chancery court was sustained. Clearly it was not based upon an in — 90 — jury to person, property, or character within the meaning of the act. Following the case above cited, Hawkins v. Kercheval, 78 Tenn. (10 Lea), 542, was decided. The bill as. amended in that case was a proceeding in substance to compel the mayor and police commissioners of a city to reinstate complainant in an office from which he had been suspended by the mayor and never legally removed by the commissioners. It was held that the mandamus sought by the bill was a form of civil action of which, by virtue of the act of 1877, the chancery court acquired concurrent jurisdiction, inasmuch as the action did not involve unliquidated damages for injuries to person, property, or character. Frazier v. Browning, 79 Tenn. (11 Lea), 254, was an ejectment bill, and it was held by this court that of such a bill the chancery court acquired jurisdiction by virtue of the act of 1877. Clearly such a cause of action did not fall within any exception in the act of 1877. In a later ease, where the bill was based upon alleged negligence of the circuit court clerk in the discharge of his official duty, by which negligence complainant was deprived of the benefit of an execution which had been levied on 230 bushels of wheat, it was held that the case did not present an injury to property within the meaning of the act of 1877, and the concurrent jurisdiction of the chancery court under that act was sustained. Glenn v. Moore, 79 Tenn. (11 Lea), 256. — 91 — In another case, where the snit was based upon the failure of a county surveyor to properly survey a tract of land, by which failure complainants sustained a loss, it was held that the cause of action was not based on injury done to person or property within the meaning of the statute, as in the case of a trespass to the one or the other, but, on the contrary, that the case was based on a loss accruing by reason of an alleged breach of duty which could be measured by the value of the property lost. State v. Keller, 79 Tenn. (11 Lea), 401. Again, where a principal sued his agent for a sum lost to the principal by the act of the agent in taking an invalid acceptance of a draft, it was said: “The wrong complained of was not an injury to the person, character, or property of complainants- within the meaning of the act of 1877.” The court in the same case passed upon the meaning of the term “unliquidated damages” as used in that act, saying: “Strictly speaking, ‘unliquidated damages’ are such damages as have not been ascertained or fixed by contract.” Kirkeys & Son v. Crandall, 90 Tenn., 532, 18 S. W., 246 In Ducktown Sulphur & Iron Co. v. Fain, 109 Tenn., 65, 70 S. W., 813, a corporation which was a defendant in twenty-one suits at law, brought by sundry persons, each suit arising out of an injury alleged to have been sustained as a result of noxious gases emitted from roast piles of copper ores, sought by original bill to enjoin the twenty-one lawsuits and to have with each of — 92 — the separate plaintiffs in those snits a separate accounting in the chancery court; hut this court held that the act of 1877 did not conf er jurisdiction in such a case on the chancery court, and that, upon the contrary,, the cause fell within the exceptions in that act. In another case, where the complainant sought to recover from a national hank the statutory penalty for knowingly- collecting usurious interest, this court held that, inasmuch as the cause would have been triable in the circuit court prior to the passage of the act of 1877, that act conferred jurisdiction on the chancery court. No mention was made in the opinion of the fact that such an action was in no sense one based on injuries to person, property, or character, though it must have been true that this fact was of controlling weight in the conclusion reached by the court in that case. McCreary v. First National Bank, 109 Tenn., 129, 70 S. W., 821. "Where the complainants sought by their bill a perpetual injunction restraining a smoke nuisance, and, in the alternative, damages for injuries caused by the smoke to certain property owned by complainants, this court said: “Chapter 97 of'the Acts of 1877 excepts from the jurisdiction of the chancery court cases of injury to property involving unliquidated damages. The chan- • eery court obviously would have had no jurisdiction to determine this claim for damages, had it been presented alone,” etc. Bank & Trust Co. v. Hotel Co., 124 Tenn., 664-666, 139 S. W., 719, 39 L. R. A. (N. S.), 580; — 93 — Reverting now to the case in hand, it is clear that, among the cases cited where the jurisdiction of the •chancery court has been challenged and sustained, there is not one which furnishes a precedent for the •claim that the chancery court, by the act of 1877, acquired jurisdiction of such a cause of action as is presented by this record. It is equally clear that this record does not present a case of equitable cognizance independent of the act of 1877. It is manifest, from the contract as averred and proven, that the minds of the parties thereto never met touching the question of •damages in the event certain of the eggs should be ■damaged by absorption of fruity flavors. Therefore we must conclude that the damages sued for are purely unliquidated, unfixed, and uncertain. “Liquidated damages” are thus defined by Bouvier: “Damages, the amount of which has been determined by anticipatory agreement between the parties. Damages for a specific sum, stipulated or agreed upon as a part of a contract as the amount to be paid to a party who alleges and proves a breach of it.” Bouvier’s Law Dictionary, vol. 2, Rawle’s Revision, 261. To the same purport are a number of definitions and illustrations in volume 5, p. 4174, et seq., Words and Phrases. Upon the same subject, see also our own cases. Ramsey v. Temple, 71 Tenn. (3 Lea), 252; Kirkeys (& Son v. Crandall, 90 Tenn., 532, 18 S. W., 246. The contract called for the redelivery of the eggs by the bailee to the bailor when called for by the latter. — 94 — The bill avers that the redelivery was made. The claim for damages is predicated on alleged negligence of the bailee in permitting some of the eggs to absorb, while in storage, certain frnity flavors, which decreased their market value and otherwise damaged the bailor. The extent of this damage it is clear from the averments of the bill must depend wholly upon proof, and is certainly as unfixed, uncertain, and unliquidated as we can imagine anything to be. "Whatever may have been the extent of the injury to the market value of the eggs, arising from the negligence of the bailee out of the manner of storage, it is clear that such negligence according to the averments of the bill arises to the eminence of a wrong against the property rights of the complainant, and amounts to an injury to property within the act of 1877. Therefore we think that the cause of action as presented by the bill, and as shown by the proof, involved unliquidated damages and was based on an injury to property within the meaning of the act of 1877, and that the chancellor was in error in his rulings to the contrary. To fall within exception No. 1 of the act of 1877, the cause of action must involve unliquidated damages and be based on injuries to person. To fall within exception No. 2 of the act,, the cause must involve unliqui-dated damages and be based on injuries to property. To fall within exception. No. 3 of the act, the cause of action must involve unliquidated damages and be based on injuries to character. — 95 — Of a cause of action falling within any one of these exceptions the act confers no jurisdiction on the chancery court. The case in hand falls within the second exception above. What we have said in this opinion on the subject of the jurisdiction of the chancery court has no application,. of course, except to cases where the jurisdiction of that court over the particular ease depends 'upon the act of 1877. It results, of course, from these views, that the decree must be reversed, and the bill dismissed.