Davis v. Marshall , 114 Va. 193 ( 1912 )

Buchanan, J.

(after making the foregoing statement), delivered the opinion of the court.

Error is assigned to the action of the court in sustaining the demurrer to the original as well as the demurrer to the amended bill.

No assignment of error can be considered here as to the action of the trial court in sustaining the demurrer to the original bill. Where a party, after a decree sustaining a demurrer to his bill, by leave of the court files an amended bill, he is considered to have acquiesced in the action of the court upon the demurrer and will not be permitted to assign such action as error in the appellate court. This is the rule in this State, and generally, it seems. Fudge v. Payne, 86 Va. 303, 307-8, 10 S. E. 7. See 2 Cyc. 645; 4 Am. & Eng. Enc. of Law and Practice, 98; 1 Enc. Pl. & Pr. 624, and cases cited in notes.

The only question, therefore, to be considered is whether or not the trial court erred in sustaining the demurrer in the amended bill.

That bill, as we construe it in the light of the order of the court giving leave to file it, is for the settlement of accounts between the complainant and the defendant which had been running from the year 1890 to the institution of this suit, in the year 1911. During that period the amended bill alleges that the complainant was the agent of the defendant in operating a mill owned by the latter.

It is well settled that a court of equity, under its general jurisdiction for the enforcement of trusts, has jurisdiction to settle and adjust accounts between principal and agent at the suit of the principal against his agent, where confidence is reposed in him by the principal. Adams’ Equity, s. p. 220-221; Berkshire v. Evans, 4 Leigh (31 Va.) 223; Zetelle v. Myers, 19 Gratt. (60 Va.) 62; Coffman v. Sangston, 21 Gratt. (62 Va.), 263; Thornton v. Thornton, 31 Gratt. (72 Va.) 212; Simmons v. Simmons, 33 Gratt. (74 Va.), 451-456.

But while the principal has the right to come into a court of equity under the circumstances indicated, and sometimes under other circumstances, it seems to be equally well settled that a bill for an account by an agent against his principal will not generally lie.

Adams, in his work on Equity, side page 221, after stating the general doctrine as to the right of a principal to invoke the aid of a court of equity to compel his agent to account, states that “It obviously follows from this doctrine that a bill for an account by an agent against his principal will not generally lie; for it is the agent’s duty and not the principal’s to keep the account.”

In a note to section 1421, 4 Pom. Eq. jur., where the circumstances under which a principal may file a bill for an account against his agent are discussed, it is said that while the rules there laid down are well settled in favor of the principal, it does not follow that the reverse is true, and that an agent may come into equity for an account against his principal, since generally there is no trust or confidence reposed in the latter, and no duty on his part to account; citing Padwick v. Stanley, 9 Hare 627, and Smith v. Levaux, 2 De G. J. & S. 1.

In Adams’ Equity, p. 22Í, it is said that there is a special exception to the general rule above stated in the case of a steward, the nature of whose employment is such that money is often paid in confidence without vouchers, embracing a variety of accounts with tenants, so that it would be impossible to do justice without an account in equity.

In Smith v. Levaux, 2 De G. J. & S. 1, it was held that a bill for an account would lie on behalf of an agent against his principal who has received certain sums upon which the former was entitled to a commission, and also, it is said, where the agent’s salary depends upon the profits made by his employer. See Harrison v. Churchwood, 6 Jur. (N. S.) 576; Sheppard v. Brown, 4 Giff 208.

The appellant, under the general rule, not being entitled to file a bill against his principal for an accounting, his amended bill was demurrable unless it contained such allegations of fact as would bring him within some exception to that rule. It is alleged that there are many items of mutual, current and, in some instances, confused account between them as principal and agent. But even if an agent could maintain a bill against his principal on that ground, it would be necessary to allege facts which show the existence of such ground. The general allegation alone is not sufficient.

Not only does the bill fail to allege such facts, but the appellant does not exhibit Ms account or any part of it with his bill.

In Hickman v. Stout, 2 Leigh (29 Va.) 6, 9, in which a demurrer to a bill for accounting was overruled, Judge Carr, speaking for the court, said: “The bill states mutual accounts between the parties, running through a series of years, and consisting of numerous items of blacksmith’s work on the one hand, and on the other of various articles of country produce delivered, such as wood, coal, hay, wheat, potatoes, of money paid at different times, of work done with wagons, etc. When I speak of the bill, I consider the account filed with it as a part of it.”

If such a showing by the bill was deemed necessary, as seems to have been thought in that case, which was a suit between parties where one was no more under obligation than the other to keep their accounts, a fortiori, such a showing at least should be required where, as in this case, it was the duty of the complainant to keep and render accounts to his principal.

It is true the amended bill alleges, “that the items of account from the year 1890 to the year 1899, were destroyed by fire in the mill operated by the appellant, and that only the balances for these years as carried forward on current account books are now in existence, and that such items cannot be reproduced by the appellant as a ground of equity jurisdiction.” While a court of equity has jurisdiction to set up and give relief in cases of lost deeds and bonds, and lost negotiable instruments in certain cases (Adams’ Eq., s. pp. 167-8) ; Shields v. Commonwealth, 4 Rand. (25 Va.) 541, 545; Taliaferro v. Foote, 3 Leigh (30 Va.) 58, the loss or destruction of account books or of items of account is not of itself a ground of equity jurisdiction.

The court is of opinion that the allegations of the amended bill are not sufficient to take the case out of the general rule that an agent cannot file a bill against his principal for an accounting, and therefore that the trial court did not err in sustaining the demurrer to it.

Affirmed.