#### *Sturtevant v. Goode.

February, 1834,

Richmond.

[27 Am. Dec. 586.]

(Absent Brooke and Green, J.)

Equity Jurisdiction — Account—Discovery*—Case at Bar — B. a master carpenter, baying been employed to build a bouse for G and the terms of the contract being expressed in two agreements between the parties, which were left in the hands of G. the employer, — brings action at law against G. on the agreements : and his counsel, finding itnecessary, and it being in fact necessary, to have copies of the agreements in order to frame his d eclaration. requires G. to furnish copies thereof ; G. refuses to furnish them : whereupon, S. dismisses his action at law, and iiies a bill in equity praying ail account and a decree for the balance due for the work done : Held, the case is properly relievable in equity.

Sturtevant exhibited his bill against Goode, in the superiour court of chancery of Richmond, setting forth, that he was employed, as a carpenter and undertaker, by Goode, to build a dwelling house for him, according to a certain plan previously determined on ; and Goode thereupon executed a covenant, importing that he had agreed with Sturtevant for the building of the dwelling house, and that he would pay him for the work, provided the whole should be done agreeably to articles of agreement between the parties, 1000 dollars at the commencement of the work, 1000 dollars within four months after the commencement of it, 1000 dollars within the next three months, and 2000 dollars within two months after the work should be completed: that this covenant of Goode was delivered to Sturtevant, but the agreement therein referred to, in which the particulars of the work to be done by Sturtevant were specified, was put into Goode’s hands, and he still retained possession of it. That, in the progress of the work, Goode, finding it convenient to have an addition made to the building originally intended, which Sturtevant agreed to make, executed another covenant to Sturtevant, whereby he agreed to pay him for such addition, when completed according to additional articles of ^'agreement between them, the sum of 1500 dollars: that this second covenant of Goode was likewise delivered to Sturtevant, but the additional agreement therein mentioned was left in Goode’s hands, and he still held it. That Sturtevant also executed a great deal of extra and very costly work, not stipulated in either of the written agreements, at Goode’s special request, and upon his promise to make him a fair compensation for the same. That it was one of the stipulations in the agreements on Sturtevant’s part, that he should furnish materials ; and he did furnish materials for the work, so far as it proceeded, and other materials to be used in completing it; but before it was completed, disputes arose between the parties, in consequence of which Goode refused to permit Sturtevant to fulfil his whole contract, and put a stop to the work before it was finished. That Sturtevant’s bill for the work actually done, including that done under both of the agreements and the extra work, at the stipulated and fair prices, amounted to 8658 dollars. That Goode had made various payments to Sturtevant on account of the work by him done, and Sturtevant was moreover indebted to Goode for provisions found and furnished bj'Goode to Sturtevant and his workmen, during the progress of the building, whereof there was a separate account between the parties, the amount of which it was agreed, should be deducted from the balance that should be found due to Sturtevant for the building, upon a final settlement. That there was a large balance due to Sturtevant, which Goode refused to pay; he also refused to come to a settlement of the accounts. That Sturtevant, thereupon, brought an action at law against Goode ; but his counsel finding it impossible to prosecute that action, or even to frame his declaration, without a knowledge of the two agreements between the parties, which were referred to in Goode’s covenants to Sturtevant, and which were retained in Goode’s possession, a written application was made to Goode for copies of those agreements, which he positively refused to furnish; and Sturtevant being impeded and *42embarrassed in the prosecution of his action at law, by the want of these *documents, that action was dismissed, by agreement between the parties, that each should pay his own costs, that such dismission should be without prejudice to any other suit or suits which Sturtevant might bring, that Goode should not, in such future suit, rely on the statute of limitations in bar of any item of Sturtevant’s claims, and Sturtevant should waive the statute as to any set-offs which Good should offer, and that Goode, as he had not before procured, so he would not afterwards procure, any assignments of claims against Sturtevant, for the purpose of set-off against his demands. And Sturtevant, having thus stated his case, prayed, that Goode might be compelled to produce and file the two agreements between the parties, which he yet retained in his possession; that accounts of all the transactions between them, might be taken; and the balance which should be found due thereon to Sturtevant, might be decreed to him : the bill placing Sturtevant’s claim to relief in equity, on two grounds, specially stated, 1. that the two agreements between the parties which Goode held in his own possession, were indispensable to enable him to proceed at law, and Goode refused to furnish copies of them; and 2. that the accounts between the parties as they arose out of, and were referrible to, several distinct contracts, were so various and complicated, that they could not be accurately adjusted in any proceedings at law, and that several actions at law would be necessary to enforce the several claims of Sturtevant upon the several contracts.

Goode first demurred to the bill, because the case therein stated was not properly relievable in equity, and then he proceeded to answer it, and to state the facts on which he relied for his defence, if the court should entertain the jurisdiction.

The chancellor sustained the demurrer, and dismissed the bill, without prejudice to any suit which the plaintiff might be advised to bring at law; declining jurisdiction upon the authority of Smith v. Marks, 2 Rand. 449. .From this decree, Sturtevant appealed to this court.

*Johnson, for the appellant.

Taylor, for the appellee.

*

Equity Jurisdiction — Account,—On this subject, the principal case was cited in Johnson v. R. L. & I. Co., 82 Va. 289 ; Petty v. Fogle, 16 W. Va. 513; Yates v. Stuart. 39 W. Va. 129, 135, 19 S. E. Rep. 425, 427; *note*to Spear v. Newell, 22 Fed. Cas. 905; *foot-note*to Coffman v. Sangston, 21 Gratt. 263.

See further, *foot-note*to Tyler v. Nelson. 14 Gratt. 214; monographic *note*on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.

TUCKER, P.

I am clearly of opinion, that the bill in this case set forth facts that gave jurisdiction to the court of chancery. Without entering upon any other part of the case, than that which respects the withholding of the agreements by Goode, I will observe, that the agreements in Goode’s possession, werfe so intimately connected with the covenants in Sturtevant’s possession, that it is difficult to imagine how the latter could have declared in covenant without them. Admitting that this difficulty could have been avoided by alleging that Goode withheld the agreements, and had put a stop to the work before it was finished ; yet new difficulties- must have arisen on the trial. The refusal of Goode to permit Sturtevant to proceed, would have absolved him from the necessity of averring performance, and gave him a right of action against Goode upon the covenants; yet the quantum of damages would depend, in a good measure, upon the terms of the agreements; for though Goode did arrest the progress of the work, it might not follow, as of course, that Sturtevant was to recover the whole contract price. Part of that price being in consideration of the materials he was to furnish, if he was stopped in the work, and did not furnish them, part of the price should of course be abated. Again, as to the extra work, it was essential that the agreements should be exhibited to enable the plaintiff to prepare his case, by distinguishing the contract work from the extra work. Was it reasonable to expect, in such a transaction as this, that he could do this upon the spur of the occasion, in a trial at law, when the defendant should, after the jury were sworn, produce the agreements? Was it reasonable to expect him to go to trial with such a hazard? He did commence an action at law. His counsel felt the necessity, no doubt, of his having these papers; and, in consequence, he sent a note to Goode, requesting copies of the agreements. They were refused: Goode kept them in his possession, and would not even let *him have copies. What right had he to withhold copies of agreements signed by both, and which on principle belonged to both. What wonder, then, that Sturtevant found himself compelled to dismiss his suit? Would he have done so, if it had not been manifest to his counsel, that he could not get along with the case without the agreements? Goode had no right to judge for him, whether the suit could have been maintained without them. He cannot be received to say here, through his counsel, “I avow that I withheld these papers, which you thought necessary for the prosecution of your demand; you might have gone on to try your cause without them.” If Goode preferred a jury trial, he should have frankly afforded copies of the papers, which his adversary thought essential for the prosecution of his suit. As he did not, he cannot complain, that he has been brought into a court of equity, since he compelled Sturtevant to come here. Nor can he, under such circumstances, object to the jurisdiction. He cannot be permitted to drive his adversary from the court of law, by withholding papers, and then to drive him from the court of chancery, because he did not hazard a trial at law without them. I am, therefore, clearly of opinion to sustain the jurisdiction. This is not the case of Smith v. Marks; it is a case sui generis. I have rarely known one in which the objection to the jurisdiction of equity was made with less propriety by a defendant.

The other judges concurred. Decree reversed, and cause remanded to the court of chancery.