Badger v. McNamara

123 Mass. 117, 1877 Mass. LEXIS 222

• Court: Massachusetts Supreme Judicial Court
• Decided: September 5, 1877
• Status: Published

Opinion

Gray, C. J.

In order to maintain a bill in equity for an ac count, it must appear from the specific allegations that there w»/ a fiduciary relation between the parties, (which is not here con tended,) or that the account is so complicated that it cannot btv conveniently taken in an action at law. The general allegation that the account is of such a character is not sufficient to sustain the jurisdiction in chancery. The object of the present bill is to recover a fixed commission upon merchandise consigned to the defendants, either by the plaintiff or by other persons. The plaintiff must know the amounts of his own consignments, and he expressly waives the oath of the defendants. He therefore makes no case for invoking the equity jurisdiction of this court, either for relief or for discovery. Frue v. Loring, 120 Mass. 507. Blood v. Blood, 110 Mass. 545. Fowle v. Lawrason, 5 Pet. 495. Dinwiddie v. Bailey, 6 Ves. 136. Foley v. Hill, 2 H. L. Cas. 28. Smith v. Leveaux, 2 De G., J. & S. 1. Moxon v. Bright, L. R. 4 Ch. 292.

The case wholly differs from those between partners, or in which, though the parties may not be technically partners, the account between them is to be settled upon the same principles as if they were, and requires the investigation of mutual charges and credits, as in Bartlett v. Parks, 1 Cush. 82, and Hallett v. Cumston, 110 Mass. 32.

Bemurrer sustained and hill dismissed.