Chapman v. Lee. other creditors, a different question would arise, and intimated that in such case an action on the case could be sustained. The equitable lien on the money given plaintiffs in the case at bar by the contract, gave them the right to have four-tenths of it applied in payment of their services, to the exclusion of all other creditors. Our case more resembles that of Adams v. Paige, 7 Pick. 542, where a third person fraudulently aided a debtor to conceal his property and cause it to be sold and proceeds applied on a fictitious judgment, and a creditor having obtained a subsequent lien on the same property, which he could not enforce because of prior attachments and of the insolvency of the debtor, it was held that action on the case would lie. Neither the allegation as to the right of plaintiffs to a lien on the money itself, nor to have full discovery from the defendants of each and all the facts touching the settlement, and the payment of the settlement money, nor the claim that they are entitled to have an account of the full amount due to them under the contract, can materially change the case. As to the first, if it could avail the plaintiffs at any time, it could not do so unless they first showed facts which would warrant a money judgment; the second was an entirely superfluous allegation save as to the ordinary mode of inquiry by interrogatories, and the allegations of fact did not make a case for an accounting in equity, nor were there contractual relations between plaintiffs and any of the defendants save Miller, and it was the other defendants against whom the real relief was sought, Miller being insolvent. Suits for discovery were, in equity practice, auxiliary proceedings, brought not to obtain any equitable remedy, nor to establish any equitable right, but to aid in maintaining a legal right, and in prosecuting actions pending, or to be brought, in a court of law. If a party could not succeed without the aid of facts within the personal knowlege of his adversary, he might file his bill, setting forth all the facts within his knowledge, and adding interrogatories which the other party was required to answer fully under oath. No relief beyond the answer desired need be asked, and no decree made, and as soon as the answer was complete the function of Chapman v. Lee. the equity court ordinarily was ended, but the answer so far as responsive, could be used by either party in the trial at law. We will not be understood as meaning that it was not common for a court of equity, having taken cognizance of a case for one purpose, to retain it for all purposes, and award complete relief though the final remedy was of the kind which might be conferred by a court of law. Such result often followed where discovery was sought as an incident to equitable relief, covering the whole controversy. But where a court of law had ample power to award full relief, a court of equity ordinarly refused to take cognizance of the case, and there clearly is more conclusive reason for such refusal, in a case like the one at bar, under our present practice. All the aid which a suit for recovery would give is now given by our code in the case at law itself. The party may attach to his pleading interrogatories which, so far as pertinent, the other party is bound to answer, and those answers may be used by either party as evidence. He may also take the deposition of the opposite party, or put him on the stand as a witness at the trial. The doctrine and rules concerning the subject-matter of discovery established by courts of equity, are believed to be still in force and to control the same matters in the new procedure, but the bill of discovery, as a separate action, is practically obsolete in this state. And in a case like the present the matter of accounting is but another name for a discovery. It is not a case of mutual accounts, nor where there are circumstances of great complication, nor of a fiduciary relation existing, such as that of guardian, administrator, or director of a corporation, where a duty rests to render an account, nor is it a case of partnership. The single fact that an accounting would disclose, is: what was the exact amount paid by the railway company in settlement of the pending suit? and ample means, in the mode hereinbefore indicated, were at hand to ascertain that fact. Where an adequate remedy is given at law, resort to equity is not necessary, and, as a general rule, cannot be had. Says Pomeroy in his work on Equity Jurisprudence, section 178: "Even when the cause of action, based upon a legal right, does involve or pre Chapman v. Lee. sent, or is connected with, some particular feature or incident of the same kind as those over which the concurrent jurisdiction ordinarily extends, such as fraud, accounting, and the like, still, if the legal remedy by action and pecuniary judgment for debt or damages would be complete, sufficient and certainthat is, would do full justice to the litigant parties-in the particular case, the concurrent jurisdiction of equity does not extend to such case, For example, whenever an action at law will furnish an adequate remedy, equity does not assume jurisdiction because an accounting is demanded or needed; nor because the case involves or arises from fraud; nor because a contribution is sought from persons jointly indebted; nor even to recover money held in trust, where an action for money had and received will lie." See, also, sections 82, 83, 142, 193, 194, 1420 and 1421. It is true that the prayer of the petition is involved and indefinite, but it can hardly be said that it does not pray a money judgment, though it does not ask for any particular sum of money. It does ask for judgment for four-tenths of any and all moneys paid on account of the settlement of the case. But the character of the action is not wholly, or mainly, determined by the prayer. Though the pleader be mistaken as to the relief he may be entitled to, if he prove the allegations of his petition, such mistake would not deprive the court of the power or relieve it of the duty to grant such relief as the case made by the pleadings and evidence warrants. Nor is it of consequence that a judgment by default might not have been proper upon the petition. The issues were fully made by petition, answers and replies, and the case was tried upon evidence. The trial court rendered a money judgment against the defendants, which was the relief the plaintiffs were entitled to if their petition was true. Nor can the belief of the plaintiffs at the time as to their right to a jury affect the merits of the case. We have examined all the cases cited by counsel for plaintiffs in error, but are not impressed that they support their contention. Brumbaugh v. Chapman. From this view of the character of the case made by the pleadings, the conclusion follows that either party had a right to demand a jury at the trial, and the case was, therefore. not appealable. Judgment affirmed. BRUMBAUGH v. CHAPMAN. Contracts-Executed and executory-Deed-Covenant as to quantity of land. 1. A stipulation in a written agreement for the sale and conveyance of a certain tract of land, described as containing a designated number of acres at a given price per acre, is executed by the delivery of a deed from the vendor to the vendee, and its acceptance by the latter as in performance of the stipulation to sell and convey the land described in the agreement; and, in the absence of fraud or mistake, no recovery can thereafter be had upon it by the vendee of the vendor for a deficiency in the land conveyed; nor, upon the deed, unless it contains an express covenant as to the number of acres. 2. A description, in the deed, of the land by metes and bounds, and also as containing a certain number of acres, does not constitute such a covenant, although words of estimation, as more or less," be omitted. (Decided November 1, 1887.) ERROR to the District Court of Portage County. F. E. Hutchins, for plaintiff in error. The terms of the contract and deed, both between the same parties, for the same land and upon the same consideration, were sufficient evidence to go to the jury that they related to the same subject-matter, and that the deed was on account of, and, so far as it went, the execution of the contract. Its recitals were evidence of the payment of the consideration named in both; and this, with the proof of the deficiency, and of the rejection of the claim by the administrator, made a prima facie case for the jury, if the plaintiff was entitled to recover in any event. The instruction to the jury went upon the ground that, if all were true which plaintiff's evidence tended to show, Brumbaugh v. Chapman. still he was not entitled to recover; and this because, notwithstanding the contract, the transaction was, in law, not a purchase by the acre, nor the deed a covenant as to quantity, but that it was a sale of whatever there was for a gross sum on the theory that the contract was merged in the deed. Does the deed so conclude the matter as to exclude the plain facts? 1. If an estate be sold at so much per acre, and there be a deficiency in the number conveyed, the purchaser will be entitled to compensation. Ketchum v. Stout, 20 Ohio, 453, 460; 3 Wash. Real Prop. *373. 2. The deed itself purported to convey an exact quantity; not as matter of description or estimation, but as the exact quantity bought and paid for. The quantity was of the essence of the contract, and the purchaser was entitled to an abatement for the deficiency, upon the deed alone. B. P. & L. Soc. v. Smith, 54 Md. 187; Beall v. Berkhalter, 26 Ga. 564, 567; 3 Wash. Real Prop. *673; Minge v. Smith, 1 Ala. 415; Stebbins v. Eddy, 4 Mason, 414. 3. The evidence, including the contract, deed and acts of the parties, shows a purchase of an exact quantity, at so much per acre. 4. When land is sold, stating the exact quantity, there is a presumption, unless otherwise excluded, that the quantity is a material element, and that the price is fixed with reference to it; and this presumption may be used in construing the contract or deed, and in determining the character of the sale. Triplett v. Allen, 26 Gratt. 721. 5. Even if the deed shows, prima facie, a sale in gross, yet it is not conclusive against a sale by the acre, if there be other evidence of such sale. Morris v. Whitcher, 20 N. Y. 41, 47; Bigelow on Estoppel, 310 312, 315; Brinegar v. Chaffin, 3 Dev. (N. C.) 108; Hayes v. Askew, 5 Jones L. 63; 2 Par. Con. 66; Reed v. McCourt, 41 N. Y. 435; Champ. & St. L. R. Co. v. Valentine, 19 Barb. 484; Deery v. Cray, 5 Wall. 795; 1 Greenl. Ev., sec. 285. VOL. 45-24 |