Palmer v. Fleming , 1 App. D.C. 528 ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court:

1. The bill was properly dismissed as against the defendant Thomas. The charge of collusion and fraud in which it was sought to involve him with the defendant Fleming having utterly failed for want of proof, and having in fact been withdrawn by the complainant, there was no ground whatever on which to hold him in this suit. By the failure of that charge it became apparent at once that he had been improperly joined in this suit. He was in no way connected with the accounting sought to be had from Fleming. He had disbursed none of the money, and was in no way responsible for the expenditures, except in so far as errors of judgment on his part, if any there were, or intention thereby to enhance the amount of his own compensation, might have contributed to swell the total amount. But neither one of these things, in the absence of collusion, would have made him liable with Fleming. The controversy between Thomas and the complainant amounts now to nothing more than a question of the compensation, if any, to be paid to the former for his services, with possibly a claim of some kind on the part of the complainant for unliquidated damages, if there was any failure on the part of the architect to perform the duties assumed by him. All this can properly be determined in the pending common law suit, or some suitable proceeding at common law. It does not present a case for the intervention of a court of equity.

It is greatly to be regretted that, after all the time and labor that has been expended in this case, and the mass of testimony that has been taken, the court, as a court of equity, notwithstanding the expressed desire of both parties for a final adjudication of their entire controversy in this suit, should feel itself constrained to decline to exercise jurisdiction. But consent cannot give jurisdiction, and the allegation of fraud and collusion in the bill, unsustained by proof, cannot give jurisdiction; and the maxim, invoked by the appellant, that when equity has acquired jurisdiction of a cause upon equitable grounds, it will proceed to administer complete relief, even though the relief should be such as would properly come from a court of common law, is not applicable to this case. A court of equity does not acquire jurisdiction by the allegation of an equitable ground of relief in a bill of complaint. If it did, it would be in the power of any complainant to close permanently the doors of all the courts of common law. It would not require, even as much as the consent of parties to give jurisdiction. Allegations and proof both are required for that purpose; and when the proof fails, the jurisdiction fails. It is only when a party shows himself entitled to some part at least of the equitable relief which he seeks that a court of equity will proceed to administer common law relief also. Dowell v. Mitchell, 105 U. S., 430; Baily v. Taylor, 1 Russ. & Mylne, 73; Story’s Eq. Jur., Sec. 74, and cases cited in the notes.

We must conclude, therefore, that the court below was right in dismissing the bill as to Thomas, and leaving the parties to their suit at law. Nor do we feel that we could properly act as referee upon the offer of both pallies to abide by the decree of this court.

2. In the accounting, which was properly ordered between the complainant and the defendant Fleming, the question of the alleged understanding which limited the cost of the house to $40,000, has no part, further than as the bills of Fleming may be found inaccurate or improper. The able and ingenious argument, therefore, that has been addressed to us on that point, however applicable it may be to the controversy between Mr. Palmer and Mr. Thomas, we must regard as entirely irrelevant to the issues between Mr. Palmer and Mr. Fleming. The compensation of the latter does not depend at all upon it — although it is true, we believe, that he made some indefinite claim for increased compensation on account of increased labor and trouble on his part. But this claim does not seem to have been seriously pressed; and the auditor has ignored it in his report. The only question in this case between Mr. Palmer and Mr. Fleming is the correctness of the accounts of the latter as presented to the auditor and reported to the court by that officer.

To these accounts, as we have stated, fifteen specific exceptions have been taken. The formal exceptions do not seem to be insisted on, and appear not to require serious consideration from us. And of the fifteen specific exceptions, only six are greatly urged. These are in their order as follows:

ist. To a part of the bill of Mr. Shea for excavating and concreting the foundations; 2d. To a charge for purchase of bricks, alleged to be in excess of the amount actually laid; 3d. To a bill of one McLeod for stone work; 4th. To a bill of one Carver for carpentering and wood work; 5th. To a bill of Burdette & Williams for hardware; 6th. To a bill of Fleming himself designated as a “carpenters’ and helpers’ pay roll.”

Of these, the third, fourth and fifth may be dismissed without much comment. With reference to the third (McLeod’s bill for stone work), the claim of the complainant that the work alleged to have been done by McLeod, was or should have been included in the contract of Gill & Baird for stone work, is not supported by the testimony or justified by a comparison of the two bills, which shows clearly that the work was very different. The fourth exception is to a bill of F. N. Carver; but it is not at all apparent wherein that bill is inaccurate. It is proved that the work was done, and the money paid; and that Fleming had no interest in it. The exception which we have indicated as the fifth — to a bill of Burdette & Williams for hardware — has even less substantial foundation. It appears that Mr. Palmer himself settled this bill after a controversy over it between Mr. Fleming and the other parties which Mr. Palmer undertook to adjust for himself.

Objection is made to the allowance of part of Shea’s bill for excavation and concreting. From the proof on the subject the fact seems to be that, on account of some error in the plans and specifications, the excavation for the foundations was dug too deep in the first instance, and had to be filled up again to some extent. But it is not apparent why Fleming should be held responsible for this. The mistake was not his mistake, but that of the architect; and if the complainant has any just claim at all in this regard it is against the latter. It was rather commendable than otherwise on the part of Fleming not to have delayed the work on account of this mistake.

In the purchase of -bricks from the Washington Brick Company by the defendant Fleming, certain “ commissions,” amounting to $148.76, were allowed by the company and deducted to Fleming from the total amount of the bill. These “ commissions ” Fleming explains as being a rebate for the payment of cash; and his counsel supposed that they had been allowed to the complainant in the account. In this, however, it is admitted that he was mistaken; and it is now conceded that the complainant should receive credit for this amount over and above what is allowed in the auditor’s report.

The number of bricks purchased by Fleming from the brick company, counsel for the complainant calculated in their brief as amounting to 557,908, while from the bill of Jones for laying brick it appears that only 492,508 were laid, a discrepancy of 65,000, with which Fleming ought to be charged. But the aggregate number of bricks in the bill of the brick company is 494,308, and not 557,908; and the discrepancy is only to the extent of 1,400, which may easily be accounted for in one way or another.

There remains the “ carpenters and helpers’ pay roll,” Fleming’s own bill for men and labor furnished by him to the work of construction. In this, two items principally are found objectionable, the designation of some draughtsmen on the pay roll as carpenters, and a charge for apprentices and others greater than Fleming himself was accustomed to pay them by the day. But it appears that the draughtsmen performed the work with which they are credited, that the prices paid to them were fair, and that the complainant himself knew of the employment while the work was in progress, and acknowledged its propriety. And it appears also, that the apprentices were employed by Fleming permanently, and were paid whether they were sick or well, and that Fleming took the risk of their employment, as their services might be demanded. It does not. appear, therefore, that there is anything unreasonable in the charge which he makes for them.

The decree of the court below must be modified so far as to allow to the complainant the sum of $148.76 in addition to the amount found by the auditor to be due to him from the defendant Fleming, making in all the sum of $191.40, which the complainant is entitled to recover from said defendant. In other respects, the said decree must be affirmed.

Two-thirds of the costs of this appeal are to be paid by the appellant and one-third by the defendant Fleming, inasmuch as the defendant Thomas has been dismissed from the cause.

Decree modified and ajfirmed.