
    Greenville Cabinet Company v. Clarence Hauff et ux.
    
    
      (Knoxville,
    
    September Term, 1954.)
    Opinion filed November 16, 1954.
    •Leon E. Easterly and Thomas Gr. Hull, both of Greeneville, for appellants.
    S. J. Milligan and F. H. Parvin, both of Greeneville, for appellee.
   Mr. Justice Prewitt

delivered the opinion of the Court.

The Chancellor sustained the demurrer of complainant Greeneville Cabinet Company to the answer and the cross-bill filed by the defendants ITauff and wife.

The bill was filed by complainant Greeneville Cabinet Company against the defendants, wherein it was stated that it had become necessary to enlarge its plant in Greeneville, and to that end it had purchased several tracts of land adjoining its plant, among which was a house and lot purchased from the defendants Hauff for $15,000 in cash. Deed to the property was dated February 25, 1951, conveying fee simple title to the complainant without any reservations.

The bill set out that after the property was sold the defendants constructed a new house, which at the time of the filing of the bill was practically complete.

The bill further set out that upon acquiring the property the Cabinet Company made a contract for the erection of an extension of its building, and upon reaching defendants ’ property they refused to vacate the same unless they were paid an additional sum of $3,000. Thereupon complainants wrote tlie defendants to vacate and this the defendants declined to do.

Prior to the execution of the deed the defendants signed an agreement, whereby they agreed to convey the property at a stipulated price, which memorandum carried a statement that the defendants would be allowed to live in the residence until their new home was completed, however, no such reservation was carried into the deed above mentioned, and complainants insist that even though this deed had contained such provisions that the defendants had completed their house for all practical purposes, and that it was in such condition that they could move in and occupy same if they desired to do so.

The bill further sets out that complainants were entitled to an injunction against the defendants prohibiting them from interfering with its construction work, and to a mandatory injunction requiring the defendants to vacate the property.

Following this an injunction was issued on July 12', 1951, and on July 17, 1951, an answer and cross-bill was filed by the defendants, the latter admitting the execution of the deed, but stated that their new home was not ready for occupancy and would not be ready for about three weeks. They admitted having received the notice to vacate.

The defendants also set out that they would be greatly inconvenienced if required to move, and that one of the defendants, Evelyn Hauff, was suffering from tuberculosis and that injury to her health would result.

Later the Chancellor declined to dissolve the injunction.

On August 18, 1951, the Greeneville Cabinet Company filed an answer to the cross-bill denying the statements therein. Following this the cross-complainants vacated the premises and moved into their new residence, which they claimed had not been completed, and that as a result of being compelled to move Mrs. Hauff’s tubercular condition was made worse, and that Mr. Hauff’s ulcerated stomach was made worse.

It was set out that the defendant Hauff suffered damages to his business on account of thus being disturbed.

The Cabinet Company filed a demurrer to the cross-bill setting up that the cross-bill states no cause of action on which relief can be granted.

This demurrer was overruled and a discretionary appeal was allowed. The cause was heard by this court and the decree of the Chancellor in that case reversed. 263 S. W. (2d) 526.

Thereafter cross-defendant filed a demurrer to the cross-bill on the ground that the Hauffs were seeking to recover unliquidated damages; that the Hauffs were seeking possession of the property which the Cabinet Company had purchased, and that the cross defendants were seeking to set up a claim of unliquidated damages; also the injunction had not been dissolved and that the action is premature. The present case was in all respects sustained by the Chancellor.

It is said in Gibson’s Suits in Chancery, paragraph 863:

“No damages will be allowed which are not the actual, natural and proximate, result of the injury arising from the suspension or violation of the defendant’s vested legal rights by the injunction. Damages that are remote, speculative or contingent, will not be allowed. ’ ’

In the case of Hood Lumber Co. v. Five Points Lumber Co., 193 Tenn. 681, 249 S. W. (2d) 896, it was held that a statute providing for setting up a counterclaim of liquidated or unliquidated tort or contract claims, expressed, or implied, whether arising from same or different transactions, applies only to suits at law.

■Under 'Code Section 10377 defining the jurisdiction of the Chancery Court it is provided:

“It has concurrent jurisdiction, with the circuit court, of all civil causes of action, triable in the circuit court, except for unliquidated damages for injuries to person or character, and except for unliquidated damages for injuries to property not resulting from a breach of oral or written contract; and no demurrer for want of jurisdiction of the cause of action shall be sustained in the chancery court, except in the cases excepted.”

The defendants cannot assert their claims for the reason that their demands are for unliquidated damages. Arco Co. v. Garner & Co., 143 Tenn. 262, 227 S. W. 1025.

In the case of Saranac Mach. Co. v. Nants & Co., 164 Tenn. 457, 51 S. W. (2d) 479, a conditional vendor brought suit in the Chancery Court, seeking merely a decree for possession of property and seeking no money judgment. The defendants filed answers and cross-bill, detailing another transaction between themselves and complainant, seeking unliquidated damages. In that case the court said:

“This is hot a suit to enforce the lien of a conditional vendor in equity as in Southern Ice & Coal Co. v. Alley, 127 Tenn. 173, 154 S.W. 536, and cases therein cited. No sale of the machinery was sought by the bill. If a sale had been prayed and granted, there might have been a money judgment over for any deficiency. The court was merely asked in the bill for a decree for possession of the property. Possession having thus been regained, it would have been incumbent upon tlie complainant to follow the provisions of the Conditional Sales Act, Thompson’s-Shannon’s Code, Section 3666 et seq.
“True, the bill did pray for rents and profits of the machinery while it was in defendants’ possession and damages by reason of defendants’ retention thereof. Such prayers, however, were ineffective, and must be disregarded as surplusage. The conditional vendee is entitled to the possession, use, and profits of property so purchased.
“No money judgment therefore could have been awarded complainant on the original bill. All complainant could have obtained was a decree for possession of the property. The case therefore falls directly under the authority of Blair v. [A.] Johnson & Sons, 111 Tenn. 111, 76 S.W. 912, 913. It was therein held that set-off or recoupment was not available to a defendant in a replevin suit under our statutes. The court said:
“ ‘Yet we think the fundamental idea involved in all offsets and recoupments is that they are brought forward by a defendant in opposition to some money demand asserted by the plaintiff. In these actions it is contemplated that the plaintiff’s demand shall be abated or lessened by that of the defendant. But how can this be, when the two actions proceed on wholly different lines, the plaintiff, by a possessory action, demanding the possession of certain property, and the defendant demanding damages by reason of the breach of a contract concerning that property? Take, for illustration, the facts of the present case. The sale of the wagon was upon a condition. The condition has failed, and the plaintiff has, undoubtedly, a right to the possession of the property. There was a warranty of soundness, and, assuming as true tlie matters which were offered to be proven, tbe warranty was broken, and tbe defendant is entitled to damages, to tbe extent, at least, of tbe difference in value between tbe article as represented and as it actually turned out to be. Smith v. Cozart, 2 Head [526] 528, [39 Tenn. 526, 528]. There would be a judgment then for tbe plaintiffs to tbe full extent of their claim, also one for tbe defendant for tbe full amount of damage to which be would be entitled under bis warranty, and neither would abate or lessen tbe other, or bear any relation thereto, except that they originated in a dealing in and about tbe same article of personal property. ’ ”

In tbe present case tbe Cabinet Company filed its suit seeking merely a decree for possession of tbe property and tbe cross-complainants then sought a money judgment for unliquidated damages.

"We are of tbe opinion that tbe court bad no jurisdiction for such cross action under Code Section 10377 supra.

Under this statute tbe Chancery 'Court has no jurisdiction for the reason that tbe claim asserted is for unliquidated damages and injury to tbe persons of tbe defendants.

We are therefore of tbe opinion that tbe Chancellor was correct in sustaining tbe demurrer filed by tbe Cabinet Company and in dismissing tbe cross-bill. Tbe assignments of error are accordingly overruled and tbe decree of tbe Chancellor will be' affirmed.  