Day, J.
1. jurisdiction: foreclosure: damages. I. The plaintiffs filed a motion to strike out the portion of the answer claiming the balance due under the contract for the sale of the stock, upon the ground that such claim is for damages tor breach ot contract, and must be prosecuted by an action at law, and cannot be joined with an action in equity to foreclose a mortgage. [349]*349This position of aqjpellant renders it necessary to consider the exact attitude in which the case stood in the court below. The defendant was proceeding to foreclose a chattel mortgage by notice and sale. The plaintiffs, by their proceeding in equity, removed this foreclosure proceeding into the Circuit Court, claiming, among other things, that upon a full account of the sale of said cattle and hogs at their full market value they would more than pay off the note and mortgage, and the balance of the purchase money, and leave one thousand dollars due plaintiffs. In answer to this allegation it became necessary for the defendant to account fully for the proceeds of the sale of the stock. This accounting shows that the cattle sold, deducting expenses, for fourteen thousand three hundred and fifty-seven dollars and five cents, being the amount of the note, and Six hundred and forty-two dollars and ninety-five cents besides, less than the price which, it is alleged, plaintiffs agreed to pay for the stock. The defendants were called upon by plaintiffs to make this accounting. The question now is, having accounted as requested, and the account showing a balance in defendant’s favor, can he have judgment for the balance in this action, or must he be remitted to his action at law therefor ? We are of opinion that the plaintiffs, by their petition, drew the whole matter within the jurisdiction of a court of equity, and that that court, to avoid a multiplicity of actions, may retain jurisdiction for the purpose of settling the entire controversy between the parties pertaining to this contract. The court did not err in the action complained of. This view also disposes of the objection to proof of the sums paid Irwin and Harris for services in transporting the cattle.
II. It is claimed by appellee that this cause is not triable here ele novo. In the view which we have taken of the case it is not necessary to determine this question. It is claimed by appellants that their contract was simply to “run” the cattle and hogs to Chicago, and that they were to have for their services whatever the stock realized over seventeen thousand dollars, and if the stock realized less than seventeen thousand [350]*350dollars that they were to have one hundred dollars for 'their services. This claim is set up in an amendment to the petition. It is entirely at variance with the claim made in the original petition, in which it is alleged that plaintiffs bought the stock for seventeen thousand dollars. It is inconsistent with the giving of the note for two thousand dollars, secured by chattel mortgage, with the conduct and declarations of the plaintiffs at various times, and is not, we think, sustained by the preponderance of the evidence.
2. contract : rescission. III. It is claimed that the defendant Ballard refused to deliver the stock to plaintiffs at Chicago, and that ^ contract was thereby rescinded. The original petition alleges, and the proof shows, that the stock was to be. shipped to Chicago in Ballard’s name. The whole case shows that this was done in order that he might hold alien upon them for the remaining fifteen thousand dollars of the purchase price. The selling of the cattle in Ballard’s name was in exact accordance with the terms of the agreement. The claim that they were sold without the consent and against the protest of plaintiffs is not sustained by the proof.
IY. It is claimed that the contract was an entire one for two hundred and eighty cattle and fifty hogs; that the hogs were never delivered, and hence that the contract cannot be ^enforced, and the defendant’s only remedy is by action for the reasonable value of the cattle. The preponderance of the evidence shows that the hogs were sold to Ballard for seven hundred dollars, and the amount credited on the note. This sale supplies the place of a delivery, and performs all the conditions of the contract. Some objections are made to the rulings of the court in the admission of evidence, which we deem it unnecessary to notice. We have considered the case as triable de novo, and so regarding it, and rejecting all evidence not clearly competent, we are satisfied that the decree of the court is abundantly sustained.
AFFIRMED.
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