Craig v. Hyde

Even assuming that the plaintiff did not, in person or by her agent, authorize the American Telegraph Company to transfer the amount in question ($3,661.23) to the credit of the stock held in Cogswell’s name, yet this was nothing more than the misapplication of that sum by the company, for which the latter alone are responsible to the plaintiff in an action for a money demand. The relation between the plaintiff and the company was that of creditor and debtor, and there is no reason why the *315liabilities pertaining to such a relation should,- in this case, be enforced by any specific form of relief. If the company fail or refuse to pay this amount to the plaintiff, the remedy is plain and adequate, and the questions which may arise are to be tried, as the constitution prescribes, before a jury, unless both parties expressly waive that mode of trial. No legal liability to the plaintiff has been proved against Cogs-well and Hyde, and the complaint must be dismissed against them. The only question upon which any doubt can arise is, whether as the company mayibe liable to refund this money to the plaintiff, still although she has mistaken her remedy, may not the court, instead of dismissing the complaint as against the company, order the issue, as a money demand, to be tried before a jury.

11 do not understand the court of appeals in Emory agt. Pease to go to this extent. In that case the complaint, without averring that the parties had stated an account, set forth a state of facts showing that the plaintiff was entitled to an account, and tending to show an account stated. It demanded judgment for a sum certain as an ascertained balance. It was held the complaint should not be dismissed, but that the action should proceed as if the plaintiff had prayed an accounting and judgment for the amount which should thereupon be found due. Thus he stated facts showing that he was entitled to an account, and that the court allowed him instead of allowing the specific sum to which he claimed he was entitled.

In the present case the plaintiff claims specific relief, purely equitable, against the company and two other defendants, and makes no demand for money or damages. She asks nothing but relief. The remedy she seeks is so dissimilar to that to which she can prove herself entitled, that I think it would be productive of confusion and inconvenience in the administration of justice to allow a plaintiff in such-a case to establish a remedy so entirely different from, and almost inconsistent with, the redress which,she *316has attempted in the first instance to obtain, and which she has failed to obtain after protracted proceedings, a long and tedious trial, and serious expense to the parties concerned.

The complaint must be dismissed as to all of the defendants with costs.