Wolf v. Irons, 8 Ark. 63 (1847)

July 1847 · Arkansas Supreme Court

8 Ark. 63

Wolf v. Irons as Ad’rx.

The action of assumpsit affords a complete remedy on an account for work and labor: and, therefore, where no peculiar facts are shown — such as a defect of proof, that facts lie within the peculiar knowledge of defendant, or that books, papers, or vouchers, the production of which, are necessary to prove the demand, are in the possession of the defendant — a party cannot resort to equity for relief.

Appeal from the Chancery side of Montgomery Circuit Court.

Bill in Chancery by William H. Wolf, against Polly Irons, as admin-istratrix, with the will annexed, of William Irons, deceased; determined in the Chancery side of the Montgomery Circuit Court, at the Sept, term, 1846, before the Hon. William H. Feild, Chancellor.

The bill alleges, in substance, thqt on the 19th Sept., 1842, said Wm. Irons, then living, but now dead, desiring to build a grist and saw mill near his residence in said county, on a stream called Muddy creek, contracted with complainant, who was a mill-wright, to build the same for him; which contract on the part of said Irons was evidenced by the following instrument: — “Hot Spring county, Ark’s, March 19th, 1842. Know all men by these presents, that I, Wm. Irons, of said county and State, do hereby agree to pay Wm. H. Wolf, of Saline county, Ark’s, tire sum of three dollars per day, and boarding, for building a good and substantial mill, which shall perform well — one half to be paid in stock or trade of such kind as will best suit him, at a fair valuation; and half in Arkansas money, provided it gets no more below par than at this time, which is quoted at fifty and fifty-five per cent, discount: payment to be made as the work progresses. This 19th March, 1842.”

(Signed) “WM. IRONS.”

Complainant executed to said Irons a similar instrument for the performance of the contract on his part.

Under the above contract, complainant alleges he commenced building said mill on the first of May, 1842, and completed it by the 24th June, 1843, laboring as foreman, or head workman, 284 days, for which he was entitled, according to the terms of the contract, to- the gnm of $352. During the progress of tire work, said Irons made some small payments to complainant in Arkansas bank notes, and in property, an account of which was exhibited, and always assured him that so soon as the mill was completed, he would pay him tire full amount due, according to the terms of the contract. But after orator had finished the mill, said Irons refused to settle with him, alleging that he was not indebted to him, and pretending that he had not performed the work according to contract, and that consequently he was not bound to pay him any thing. But orator avers that tire mill was built in a good and substantial manner, and performed as well as any mill could have been expected to perform under the circumstances. That after it was completed, said Irons accepted the mill, and continued to run and use it until his death, and after his death his representatives continued to use it, and to derive much benefit therefrom.

Orator further alleges that, after said contract was entered into, Arkansas bank paper depreciated until it was not worth more than 33-s-cents on die dollar, and he therefore insisted that he was not bound to ‘ receive it for any part of his labor. He further insisted that the term “Arkansas money,” in law, meant gpld or silver, and not Arkansas bank notes; but even if such was not the proper construction of the contract, after deducting the payments made to him in Arkansas bank notes, by said Irons, from the one half of the amount of said labor, there was a balance due him of $296 50, besides the sum of $284 84, balance due him in property, after deducting tire payments made in property, which last sum, orator insists is due him in money, since said Irons had refused to pay it in property.

Orator further alleges that, during the whole time the mill was building, the other hands which Irons had employed to work upon it, used his tools, for the use of which he had charged the reasonable sum of $30 in good money; and that he sold Irons two spades and a mill-saw file, for which he had charged him $5 in Arkansas money.

Orator further alleges that, at various times after the mill was completed, he demanded a settlement with said Irons, and requested him to pay the amount due to orator in property according to contract; and that on the 8th of July, 1843, he made a special demand at the residence of said Irons, and offered to take the amount due him in property — in any kihd of good stock or trade — >at a fair Valuation} but he wholly refused} &c-.

Orator further alleges that} on the 23d Dec^ 1845, said Irons died} leaving a will without an executor} and that there was no administra-tion upon his estate until the 29th May, 1846; when letters) With the will annexed, were granted to defendant, Polly Irons-. That before filing his bill, he had presented to defendant) ás such administratrix, an account} duly probated, of his claim against said éstate for allowance, in which the proper charges Were made} and all just credits given, but she refused to allow it. The account is exhibited..

Complainant further alleges that the accounts between himself and defendant were so complicated — a part of his being for Arkansas money, part for property, and the residue for good money — and the cross'claims of defendant for payments, so entangled and diversified, that it Was impossible to adjust them in a court of law, <fcc.

The bill prayed that an account be taken between the parties, for a decreé against defendant, as administratrix, for the amount found due complainant, and for general relief.

Defendant demurred to the bill upon the ground that the remedy of complainant was complete at law. The court sustained the demurrer, and complainant appealed.

WatkiNS & Curran, for appellant.

Ringo & Trapnalu, contra.

The record and assignment of errors present the single question, whether of the matters,- as stated in the bill, a court of equity has jurisdiction.

The appellee insists that the case presented and made by the bill, is not one of which a court of equity has cognizance] but that front the facts as stated, it is shown affirmatively that adequate relief is easily attainable in either a court of common law, or the Court of Probate.

No trust, fraud, or accident is alleged] no specific performance is asked; no irretrievable mischief apprehended; no defect of proof and consequent necessity of discovery alleged. The matter as stated is a single transaction between the parties, involving, it may be, controverted items of charges on the one hand, and controverted items of claims to credit on tlie other; but ño extensive and long continued accounts growing out of many arid diversified transactions between the parties, is pretended, and therefore,- rio ground whatever of equity jurisdiction appears. Story's Com. Eq. 439, 440, 441. Dinwid-dle v. Bailey, 6 Vesey 136. Porter v.- Spencer $ 2 John. Ch. R. 171. 1 Maddox Ch. 86, 87.

The Court of Probate of Montgomery county, as shown by the bill, had rightly the exclusive cognizance of this demand; and therein full and adequate relief could have been obtained. Const. Arle. Art. Vt. sec. 10. Rev. St. Ark. ch. 43, sec. 6; ch. 4, sec. 86, 95 to 103, 121,122; 123; 167-8-9, 177; ch. 23; sed. 1; Const. Ark. Art. 6, sec. 6;

Oldham; j.

This was a bill filed by the appellant against the ap-pellee as administratrix of William Irons; deceased. The bill charges that appellant agreed to work on a mill for the deceased, and was to be paid according to the written promise of Irons, set forth in the bill; that under said agreement, he worked a number of days and completed the mill; and that Irons made him certain payments, but refused to pay the balance due. That Irons had died leaving a will, but appointed no executor, and that letters of administration, with the will annexed, had been granted die appellee. The bill prays an account, &c. A demurrer was filed to the bill and sustained by the Circuit Court; and the cáse has been brought to this court by appeal.

We can see nothing in this case which will authorize a court of équity to takes jurisdiction. The complainant seems to be advised of all the facts; he alleges no defect of proof, or that the facts lie Within the peculiar knowledge of the defendant. The transaction took place with the deceased, arid the administratrix cannot be presumed to be intimately acquainted with it,- so as to make a discovery, unless it should be so alleged by the bill. No books, papers, or vouchers are alleged to be in the possession of the defendant, which are required to be produced for the purpose of stating an account.

The bill simply makes out a case of Work and labor, for which, partpayhrent has been made: and for the recovery of the residue, the remedy afforded by an action of assumpsit is ample and com-píete. This is not such a case as a court of equity will take jurisdiction of, for the purpose of stating an account, as it is clearly shown by Mr. Justice Story, in his commentary under that head. 1 Sto. Eq. 423; also, Porter v. Spencer, 2 J. C. R. 171. Dinwiddie v. Baily, 6 Vez. 136. We think the Circuit Court correctly sustained the demurrer, and dismissed the bill- Decree affirmed.