Becker v. Frederick W. Lipps Co.

Briscoe, J., delivered the opinion of the Court. The questions-for decision in this case are raised upon a demurrer to a bill in equity, which was sustained by the Circuit Court of Baltimore City. The bill was accordingly dismissed, and leave of the plaintiff to amend was denied. ³⁰³ The principal defense made on the demurrer and relied upon in argument, is, that the Circuit Court of Baltimore City has no jurisdiction of the subject-matter of the suit, because the cause of action and relief demanded, are fully legal in their nature, and properly cognizable in a Court of Law. The facts of the case, out of which the controversy arose, and upon which the decision of the case must turn are stated and appear from the averments of the bill and are admitted by the demurrer to be true.

They are these : The plaintiff is engaged in the cooperage business in the City of Baltimore, and in the conduct of the business and in connection therewith buys and sells empty barrels of various kinds. The defendant is engaged in the manufacture and selling of chocolate and confections in the City of Baltimore,, and in connection with-its business has on hand a large number of empty barrels of different kinds for sale. On August 8th, 1915, the plaintiff agreed to purchase and the defendant agreed to sell all of defendant’s output of empty barrels for the period of one year, from the 15th of July, 1915, to the 15th of July, 1916, upon the terms, conditions and prices provided by a contract between the parties, and which will more fully appear from the averments of the bill, disclosed by the record now before- us. The- contract was signed in duplicate, is filed with the bill, as Plaintiff’s Exhibit Ko. 4, and is- as follows: “Baltimore, Md., 7/15/15. “This agreement, made this 15th day of July, 1915, between Win.

Becker &. Co., parties of the first part, and the Frederick W. Lipps Co., parties of the second part, all of Baltimore City: “Parties of the first part agree to purchase and parties of the second part agree to sell all of their entire output of empty barrels, as they run, no deductions to be made for damaged barrels, unless by mutual consent, prices as follows: ³⁰⁴ Condensed milk oák barrels.......'........$1.00 Soft wood condensed milk barrels.......... .60 Glucose barrels................ 90 Headdown glucose barrels..................75 Single head glucose barrels................60 Grain alcohol and spirit barrels............ 1.00 Olive oil and cotton seed barrels........... 1.00 Engine, cylinder, dynamo oil barrels........ .85 Double head sugar barrels.................20 Damaged and single head sugar barrels.....15 Cocoanut, originally sugar barrels..........15 And ail other empty packages not mentioned above to be accepted at the ruling market prices. “The parties of the first part guarantee the above prices for one year from date, and agree to promptly remove all barrels when notified by the' parties of' the second part. “Witness the signature .of the parties ■ of the first part, and the parties of the second part duly author- • ized.to sign this agreement. “Terms, cash on delivery. “Accepted August 5, 1915. The Frederick W. Lipps Co., (Seal) By Frederick W. Lipps, Pres.” The bill alleges that the defendant failed to deliver to him the entire outfit of empty sugar barrels, as under the contract it was required to do, but has at all times refused to deliver any of said barrels, although often demanded so to do, that the defendant has broken the contract and as a result thereof the plaintiff has suffered a very substantial loss and damage therefrom. The bill then alleges that the plaintiff has no way or means of ascertaining what number, in fact constituted the defendant’s entire .output of sugar barrels for the period of one year mentioned -in the contract, because the facts and the means..of ascertaining them are in the exclusive-keeping and possession of the defendant. . ³⁰⁵ The prayer of the bill is in substance that a Court of Equity, decree a discovery, an accounting and the defendant, also be decreed to pay the sum ascertained to be due the plaintiff, as damages for a breach of the contract, and such other and further relief as the case may require. ■ It is contended upon the part of the defendant in support of the demurrer, that the plaintiff’s relief or remedy, if any, is an action at law for the recovery of damages for a breach of contract, that a Court of Equity is without jurisdiction to entertain this bill and the plaintiff ought to be left to his remedy at law.

On the other hand, it is urged by the plaintiff that