Mayr v. Nelson Chesman & Co. , 1915 Ill. App. LEXIS 404 ( 1915 )

Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is a bill for a discovery and an accounting. It is predicated upon three well recognized grounds of equitable relief, viz.: fraud, fiduciary relations and numerous and complicated accounts. Incidental to the main relief asked the complainant prayed that, pending the hearing, the defendant be enjoined from further prosecuting its certain suit at law against complainant, and from instituting other threatened suits at law, involving some of the same transactions as are involved in the bill. Complainant’s motion for such preliminary injunction was referred to a master, and after a hearing on the sole issue whether such injunction should issue the master recommended its issuance, and subsequently the court, after hearing argument on exceptions to the master’s report, followed the recommendation and issued the order appealed from. The sole question before us is whether the Superior Court erred in granting the preliminary injunction. (Billboard Pub. Co. v. McCaraban, 151 Ill. App. 227, 233.)

The main contention of counsel for defendant is that the allegations of the bill and the evidence taken before the master disclose the existence of a remedy at law so adequate and complete as to preclude a court of equity from assuming jurisdiction, (1) because the allegations of fraud are insufficient and for aught that appears in. the bill a court of law may apply an adequate and complete remedy; (2) because the facts stated in the bill do not show a fiduciary relation between the parties but merely that of debtor and creditor; (3) because it does not appear that the accounts are complicated, though numerous; and (4) because the Municipal Court as a court of law, having first acquired jurisdiction, has, by reason of section 68 of the Practice Act (J. & A. ¶ 8605) and section 9 of chapter 51 of the Revised Statutes of this State (J. & A. ¶ 5526) and other statutes, every facility that a court of equity has for the conducting of an accounting.

Passing the question whether the facts stated in the bill sufficiently show that a fiduciary relation existed between the parties, we are of the opinion that the bill' alleges sufficient facts showing fraud (which are not denied), and that the bill and the evidence taken before the master sufficiently disclose that the accounts are numerous and complicated, so as to give a court of equity jurisdiction. “Courts of equity have jurisdiction to compel an accounting, although the complainant has an adequate remedy at law, where fiduciary relations exist, or fraud is charged, or a discovery is sought.” (1 Ruling Case Law, p. 224; Billboard Pub. Co. v. McCarahan, 151 Ill. App. 227, 235.) “Fraud is one of the broadest grounds of equity recognized by the courts. * * * It is the fraud which gives jurisdiction to this court, and the aggrieved party is not obliged to resort to another tribunal, possessed of less power and appliances to ascertain the truth, and grant the required remedy, although the other tribunal may have jurisdiction.” (Nelson v. Rockwell, 14 Ill. 375, 376.) “Where the state of accounts between the parties is complicated and intricate, where the state of accounts between the parties is involved with third parties, where to do justice requires the employment of methods of investigation peculiar to courts of equity, and where it would be very difficult for a jury to unravel the numerous transactions, are conditions usually held to be sufficient to give a court of equity jurisdiction. The jurisdiction in equity does not, in such cases, depend upon the absence of a remedy at law, but upon its adequacy or practicability and upon the discretion of the court.” (Crown Coal & Tow Co. v. Thomas, 177 Ill. 534, 540.) “In respect to the consideration of matters of account, the equitable jurisdiction of courts of equity is concurrent with that of courts of law, and no precise rule can be laid down as to the cases in which a court of equity will exercise its jurisdiction. A court reserves to itself a large discretion upon the subject and will refuse or reject the cognizance of cases of account as the circumstance of the particular case may render expedient.” (Forster, Waterbury & Co. v. Webster Mfg. Co., 108 Ill. App. 41, 46.) And we think that it was proper for the Superior Court, having jurisdiction as a court of equity of the present bill for an accounting, to issue the preliminary injunction as incidental to the main relief prayed for. “The existence of a defense at law does not make an injunction against the action at law improper when for any reason the court of equity is a more suitable tribunal for the determination of the matter, or where equitable remedies, unavailable in the court of law, are necessary.” (22 Cyc. 798; see also Forster, Waterbury & Co. v. Webster Mfg. Co., supra.) And, even admitting for the sake of the argument only that the Municipal Court as a court of law has, by reason of the statutes mentioned, every facility that a court of equity has for the conducting of an accounting, that fact, in our opinion, does not deprive the Superior Court as a court of equity, under the facts of the present- case, of its long recognized jurisdiction in matters of account. (1 Corpus Juris, p. 619; 1 Story’s Eq. Jur., kec. 80; 1 Pomeroy’s Eq. Jur., sec. 279; Garden City Sand Co. v. People, 118 Ill. App. 372, 375; Grimes v. Hilliary, 38 Ill. App. 246, 248; Kendallville Refrigerator Co. v. Davis & Rankin, 40 Ill. App. 616, 625.)

And we do not think that under the facts disclosed there is any merit in the contention of counsel for defendant that the bill is fatally defective because no demand was made by complainant for an accounting before the bill was filed. (1 Corpus Juris, p. 627; Chrichton v. Hayles, 176 Ala, 223, 228.)

It is further contended by counsel for defendant that as it appears from the bill and the evidence taken before the master that defendant rendered monthly accounts to complainant, which accounts except the last one were settled and paid by complainant, said accounts cannot be opened up except as to particular items claimed to be erroneous. Under the facts disclosed we are of the contrary opinion. In State v. Illinois Cent. R. Co., 246 Ill. 188, 241, it is said: “The terms ‘stated’ and ‘settled’ accounts are sometimes used as equivalent expressions. * * * An account stated is only prima facie evidence .of its correctness. * * * It may be impeached for fraud or mistake. The general rule is, that in an application to open a stated account the plaintiff mush either charge fraud or state particular errors. If a complainant seeks the aid of a court of chancery under such circumstances, the charges in the bill must be definite and reasonably certain. ’ ’ In the present bill there are definite charges of fraud in connection with said monthly bills or accounts rendered. “While an account stated or settled will ordinarily, bar discovery and relief, yet if the balance ascertained is not correct or the settlement is infected with mistake or fraud, or brought about by undue advantage, equity will entertain jurisdiction for the purpose of opening it for restatement or for correction in part.” (1 Corpus Juris, 716.)

For the reasons indicated we are of the opinion that the Superior Court did not err in entering the interlocutory order or decree appealed from, and the same is affirmed. '

Affirmed.