Goldsborough v. County Tr. Co. of Md.

Bond, C. J., delivered the opinion of the Court. The appellant, once attorney for the appellee, sues in equity for an accounting of commissions alleged to be due to him, by agreement, on amounts paid to the client on j udgments entered by the attorney, for a discovery of amounts so paid, and for an injunction to restrain foreclosure of an overdue mortgage by him and his wife to the client until the state of accounts between them has been ascertained. A demurrer to a second amended bill of complaint was sustained and the bill dismissed; and the appeal has been entered from that action. The- bill, filed on January 21, 1941, avers that judgments for the company were entered by the plaintiff attorney on promissory notes placed in his hands for collection, and amounts due on them have been paid directly ⁶¹ to the company; that there was an agreement between the parties that the attorney should be paid a fee of ten per cent upon amounts collected on the notes; that the defendant has concealed from the plaintiff the fact of the payments directly, and it has only recently come to the knowledge of the plaintiff; that the fact is not denied by the defendant, but it refuses to disclose the amounts collected or the debtors from whom they were collected; that the plaintiff has no means of obtaining the information except from the defendant; that the defendant holds the mortgage, overdue and in default from the plaintiff and his wife, and if it is found that the amount due is greater than that due the plaintiff for his fees, he is ready to pay the balance.

On these averments the bill prays a discovery of the amounts paid on the judgments, an accounting of the fees or commissions payable, and the injunction against foreclosure of the mortgage until the accounting is made. When rights of an agent against his principal can be determined only by reference to accounts or information kept in the possession of the principal, there is a usual ground of jurisdiction in equity for discovery and accounting notwithstanding the facilities for obtaining discovery at law under the Code, Art. 75, Secs. 106 and 107. Zalis v. Orman, 175 Md. 100 , 199 A. 877 ; Miller, Equity Procedure, sec. 721. The aid afforded a plaintiff at law in the power to call an opponent as a witness, (Acts 1939, ch. 380, Code, Art. 35.

Sec. 8), does not, by reducing the necessity for resorting to equity, prohibit the plaintiff’s doing so. The equity jurisdiction continues in full effect. Zalis v. Orman, supra; Hill v. Pinder, 150 Md. 397, 407 , 133 A. 134 ; Union Pass. Ry.

Co. v. Mayor of Baltimore, 71 Md. 238, 241 , 17 A. 933 . But the plaintiff must show the necessity for his resorting to the remedy, and is