R. & J. Caldwell & Co. v. Dulin , 22 Ga. 4 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

Was the Court right in overruling the demurrer ?

The demurrer was founded upon an allegation that there was no equity in the bill.

And in support of this allegation, certain reasons are stated in fhe bill of exceptions. Of these the first is, that Dulin’s sureties on the notes are not parties to the bill.

It was argued, that, as the sureties were not parties to the bill, the decree would not bind them, and, therefore, that if the decree should be in favor of the defendants, they would, nevertheless, be exposed to the risk of another suit like the present, at the instance of the sureties.

This argument is sufficient to show that the sureties would be proper parties complainant to the bill; but it is not sufficient to show that they would be proper parties defendant to the bill. This must be manifest.

But they are not necessary as parties complainant; a decree can be rendered without them ; and if it could not be, yet they cannot be made parties complainant against their will; no person can be made a suitor against his own will.

[1.] It follows that their absence as parties from the bill, could not be that which would show that there was no equity in the bill. Still the complainant ought to add them to the bill as co-complainants, unless they object to his doing so. The want, however, of even necessary parties to a bill, is not a cause for dismissing it, if such parties are to be had by a mere amendment.

The next reason stated in the bill of exceptions is, that the bill of complaint contains no offer to restore things to the state in which they were before the settlement was made.

But the settlement was made, the negroes delivered up, and the notes taken as security, in lieu of the negroes, in the face of a protest made by the complainant that he did not owe the defendants any thing, and that he would defend himself from the notes, by setting up cross demands against them ; that is to say, would defend himself in the way in which he is now attempting to defend himself. It was in the face of this protest, that the defendants took the notes in lieu of the negroes; and doubtless, they did so, for sufficient reasons that were known to themselves. It is to be presumed, therefore, that if an offer had been made by the complainant to the defendants, to restore things to their old condition, the offer would have been rejected. And lex neminem cogit ad vana, seu inutilia.

Besides, it is questionable whether the maxim — one must do equity before he asks equity — would, even if this protest were not in the case, require more of the complainant, than an offer to let a decree go against him, should it turn out that the equity of the case would require a decree against him; as no decree can, in general, be rendered against a complainant, unless he has consented that one may be.

[2.] We think, then, that this reason was not a sufficient reason.

The next reason stated in the bill of exceptions, is, that the allegations in the bill are too uncertain. And this, surely, is a well founded reason as to most of those allegations.

The object the complainant wished to accomplish by the 'bill, was, as he states it, to open a settlement made by him with the defendants, and, in a new settlement, to get the allowance to him of certain demands of his against the defendants, which, he seems to mean to say, were not allowed to him in the old settlement. Of course, therefore, it was necessary that his bill should state those demands, with at least such a degree of certainty, that, if found true, they might serve as the basis of some decree.

The first of those demands, is that which, according to the bill, grew out of a contract, between him and the defendants, that was to be executed on his part at Griffin.

As to this contract, what the bill says, is, substantially, as follows : That the defendants were to supply the complainant with any amount of “ monied facilities,” which his “prudent purchases” of cotton, at Griffin, might, require, and were to do so for an indefinite length of time — viz: from 1850, till the “ end of this business ;” and he was to consign the cotton to them, and they were to sell it, take their advances and commissions out of the pioceeds of the sales, and turn over the balance to him; that they failed to make advances to him, except to the extent of $¡18,000, and, instead of doing so, made advances to “ another party in Griffin,” and did so in secrecy; that they misled him as to the propriety of continuing “ in the cotton speculation that, about the 8th of March, 1852, he, perceiving that he could not buy in Griffin, more cotton, in a short time, than he was authorized by the defendants to draw for, most of the cotton crop there, having been sold and “ shipped,” and he, “ having confidence in the market,” proposed to the defendants, that he should be allowed to make a special operation in Savannah ; and that they, on certain terms, accepted the proposition.

This is all that the bill says descriptive of the Griffin contract. The breach of that contract, complained of, is the failure of the defendants to make to him as large advances as the contract called for, and yet, there is no statement of what the damages were that resulted from that breach, nor any statement of any matters which might serve as a measure of what such damages were : as the prices of cotton in Griffin and in Charleston, respectively, at the times when, (if the advances had been made,) the cotton would or might have been bought by the complainant at the one place, and would, or might have been sold by the defendants, al the other place. Indeed, there is an adminission which seems to neutralize the very allegation, that there was a breach, and therefore, of course, seems to show, that there could have been no damages — viz : the admission, that there was not in Griffin more cotton to be bought than what the complainant had authority to draw for, and that he, therefore, was induced to make a new proposition to the defendants.

Suppose all this were admitted to be true by the defendants, of what value would it be to the Court and jury, in making up a decree ? None. It is impossible to tell from it, how much damages the complainant even claims.

No excuse is given for this defect in certainty; it is not said that the facts are in the knowledge of the defendants, exclusively, and that a discovery from the defendants would enable the plaintiff to state the facts with the requisite fullness and particularity.

[3.] So far, then, as the Griffm contract is concerned, it is trae, we think, that the statements of the bill are too uncertain.

This contract labors under another objection, one, however, which was not urged before this Court, or the Court belcw, and, therefore, one, the sufficiency of which, this Court does not decide. That objection is, that the damages, if any, which resulted from the breach of the contract, if there was a breach of the contract, must have consisted merely in a los3 of profits — viz: in the loss of the profits which the plaintiff would have made if the defendants had complied with their part of the contract, that is, had furnished the plaintiff with means with which to “ speculate” in cotton, for an indefinite length of time.

The next mentioned demand is one which the bill says grew out of a contract to be performed at Savannah — a contract that was to take the place of the contract just considered.

What has been said of the contract just considered, in respect to its want of certainty, may, for the most part, mutalis mutandis, be said of the contract now under consideration. The bill neither states the prices of cotton prevailing in Savannah, during the plaintiff’s buying time, nor the prices of cotton prevailing in New York, during the defendants’ selling time.

The plaintiff was to be at liberty to purchase from 1000 to 1500 bales of cotton. How many he ivould have purchased if he had been supplied with money by the defendants, is not stated, if, indeed, such a thing could have been stated.

No excuse is rendered for the failure to state these facts. •

The damages consist merely in the loss of supposed profits. The allegations, then, in respect to this contract, are also too uncertain.

Another of the demands is one which, according to the bill, grew out of the fact, that the plaintiff, at the instance of the defendants, sent to them a quantity of cotton by wagons, instead of keeping the cotton until the railroad resumed operations, and sending it by the railroad.

What is true of the two contracts above mentioned, is mutatis mutandis, for the most part, in a greater degree, if possible, true of this.

Further, the bill sets up demands in favor of the plaintiff against the defendants, on the score of frauds practiced on him by them, in selling his cotton under the pretence that they were unable to hold it longer; on the score of losses charged to him, which did not, in reality, exist; on the score of a fraudulent misapplication of the proceeds of the sales of his cotton.

The allegations in respect to all of these demands, are too uncertain. It would be a waste of time to specify the particulars, in which the want of certainty consists.

There remains for notice, but one other detnand, and that, we think, not however, without much difficulty, is set forth with a sufficient degree of certainty. That demand is the one founded, according to the bill, on advances made-to White and others, at the request of the defendants. In respect to this demand, the bill says that the plaintiff, at the request of the defendants, advanced money to White and others, to be laid out in cotton, which was to be shipped to the defendants and to be sold by them; that the commissions on the sales were to be divided between the plaintiff and the defendants; and that the commissions on the sales amounted to $5,000. There is, perhaps, enough of certainty in this statement to found some decree upon.

To this demand, however, two other objections were made: first, that it was barred by the statute of limitations; secondly, that it was a demand existing, not against the defendants by themselves, but against them and one Williams, jointly.

As to the first of these objections — the demand is one founded on an account which was between merchant and merchant, and which concerned the trade of merchandise. Such an account is expressly excepted from the operation of the statute of limitations.

As to the second — the bill, it is true, says, that Williams was not a member of the firm when this demand arose; but the answer, in its title, shows that he was. And the mistake in the bill may be corrected at any time. There can be little harm, therefore, in assuming that the correction will be made. At all events, we think that this objection is not such a one as to require the bill to be dismissed at present.

So much for the grounds of the demurrer, resting in the want of certainty in the allegations of the bill.

The reasons given by the bill, as the reasons why the demands set up in the bill were not brought into the settlement that was made, are far from satisfactory. There is, however, I think, saving efficacy in one of those reasons: the defendant says that he entered into the settlement, protesting that he did not owe anything, and that he had “ equitable sets-off,” which he should oppose to the notes that he was giving. This, as I conceive, made the settlement amount to no settlement at all.

There is but one exception left The defendants insisted that their answer had sworn off all the equity of the bill The Court below held that it had not, and refused to dissolve the injunction.

This decision will not be disturbed. The answer is not full as to the allegations respecting the demand founded on the advance to White and others, nor as to those respecting the settlement. Besides, it seems itself suspiciously fond of dwelling in generalities.

The result is, that all the judgments of the Court below, must remain undisturbed.

Judgment affirmed.