Manion v. Manion , 120 Ky. 1 ( 1905 )

Opinion by Chiep

Justice Hobson

Affirming.

Appellant, John C. Manion, began tbis action in tbe Henderson Circuit Court by a petition in ordinary, in which be alleged that tbe defendant was indebted to bim in tbe sum of $927.07 for balance of money advanced, paid and furnished to and for bim, and for bis use and benefit, at bis special instance and request, and for labor and services performed for bim at bis like request, particulars of wbicb were set out in an itemized account filed with tbe petition, and it was alleged that each item of tbe account was just and reasonable. Tbe itemized account which was filed with tbe petition covers 17 pages of tbe transcript. and embraces something like 500 items. The defendant filed an answer, in which he denied that he bought of the plaintiff, or that the plaintiff furnished to or for him at his instance or request, any of the goods, wares or merchandise charged on the account sued on, except as therein stated; and he denied that he ever had of the plaintiff, or that the plaintiff ever furnished to or for him, or that the defendant ever in any way got the benefit of, any of 94 items of the account which were set out in the answer. Among other things, the plaintiff claimed services for six months at $100 a month. The defendant denied that the plaintiff rendered services for more than five months, and alleged that his services were rendered under an agreement that he was to pay therefor what the services were worth, and that they were not worth over $25 a month. The defendant also alleged that the plaintiff had, while in his employ, put on the defendant’s pay roll, and paid out of the defendant’s money, two persons who were not in the defendant’s service, amounting to $199.55. He also alleged that the plaintiff was* employed to keep timebooks, and to take care of the feed which the defendant provided for his teams, which was placed in-plaintiff’s keeping, and that he wasted the feed to the amount of $500. He also alleged that the plaintiff sold whisky to his employes without license, and that the whisky so sold was charged to him on the account. Finally, he alleged that he had paid the plaintiff, and more than paid him, for all the goods, wares, merchandise or cash he ever had of the plaintiff or that the plaintiff ever used for him, and for all the services he ever rendered him. The plaintiff by reply controverted the affirmative allegations of the answer. The defendant entered a motion to transfer the case to the equity docket and refer it to the master commissioner to audit the accounts between the parties. The plaintiff objected to the motion, but the court being of opinion that a transfer was necessary because of the peculiar questions involved, and because the case involved accounts so complicated and such great detail of facts as to render it impracticable for a jury to intelligently try the case, the motion was sustained, and the plaintiff excepted. The commissioner to whom the ease was referred reported in favor of the defendant. Numerous exceptions were filed to his report, but the court overruled the exception and entered judgment in favor of the defendant. The plaintiff appeals, insisting that the court erred in denying him a jury trial.

In O’Connor & McCulloch v. Henderson Bridge Company, 95 Ky., 633, 16 Ky. Law Rep., 244, 27 S. W., 251, 983, this court held that as the ancient mode of trial by jury is, by section 7 of the Constitution, to be held sacred and the right thereof remain inviolate, subject to such modifications as may be authorized by the Constitution, section 10 of the Civil Code of Practice, which provides for the transfer of an action from the ordinary to the equity docket because of the peculiar questions involved, or because it involves accounts so complicated or such great detail of facts as to render it impracticable for a jury to intelligently try the case, adds nothing to the authority of the court to try an action in equity. But it was held in that case that section 7 of the Constitution was not intended to be so strictly construed as to prevent in any case the due and proper administration of justice; that courts of equity have for a long time necessarily had jurisdiction in all cases of mutual accounts, upon the ground of the inadequacy of the remedy at law; that in a complicated account a court of law would he incompetent to examine it before a jury with the necessary accuracy; and that courts of equity- constantly act by taking cognizance of matters which, though cognizable at law, are so involved with complex accounts that they can not properly be tried at law. In that case it was also said as- follows: “This court has uniformly held that a court of equity has concurrent jurisdiction on matters of account, and ‘should be exercised when otherwise there may be serious doubt as to the true state of the accounts, or difficulty in satisfactorily adjusting them and safely striking a balance.’ ” In City of Covington v. Limerick, 40 S. W., 254, 19 Ky. Law Rep., 330; Sallee’s Administrator v. Eades, 50 S. W., 1102, 21 Ky. Law Rep., 109, and Brashears v. Letcher County Court, 61 S. W, 285, 22 Ky. Law Rep., 1763, the rule announced in the case cited was followed, and the transfer of the action from the ordinary to.the equity docket was upheld. In the case before us there were mutual accounts or claims. It was incumbent on the plaintiff, as agent of the defendant, to render to him an account of his stewardship, and of such settlements courts of equity have always had jurisdiction. In none of the cases cited was there a greater complication of accounts than in the case before us. In none of them was it more evident that it was impracticable for a jury to intelligently try the case. Eor a jury to have attempted to pass on the disputed items of the account between the parties would have been, not to arrive with any accuracy at the condition of the account, but to have made a rough guess at it. We, therefore, conclude that the court properly transferred the action to the equity docket, and referred it to his commissioner to make a settlement of the accounts.

The defendant, moreover, testified that certain items of the account were paid by. the plaintiff out of money which, he had furnished him for that purpose. It is insisted that this proof is incompetent, as there was no plea to this effect. The answer of the defendant denied that the plaintiff furnished him these items, or any part of them. He also pleaded affirmatively that he had paid the plaintiff all the money which he furnished for him. We can not see how, under these allegations, the form of which was not objected to, the plaintiff could have been misled. Both the parties took a large amount of proof, and it in fact appears from the record that they went into the cáse on its merits, and that the plaintiff was not in fact misled, but took proof on all the questions involved. It is provided in the Code that the variance shall not be material unless the party complaining was misled thereby to his prejudice. We fail to see that there was any variance here, and, clearly, it does not appear that the plaintiff was misled to his prejudice.

The plaintiff ordered for the appeal a partial transcript of the record, and the defendant then ordered the clerk to copy the remainder of it so as to make a complete transcript. The appellant has entered a motion that the cost of this additional record shall not be taxed. But either party was entitled to have a complete transcript of the record for the appeal. Appellant was not compelled to file an assignment of errors, and, therefore, the appellee, not knowing what ground of reversal might be relied on, had the right to have the entire record copied so as to take no chances. The motion that appellee shall be taxed with the cost of the additional record is overruled.

On the merits of the case, we see no reason for disturbing the chancellor’s judgment confirming the report of the commissioner.

Judgment affirmed,