Kent W. RICHARDSON, Petitioner, v. FIRST NATIONAL LIFE INSURANCE COMPANY, Respondent, 419 S.W.2d 836

GRIFFIN, Justice. Petitioner, as plaintiff below, filed suit in a district court of Bexar County, Texas, against respondent, as defendant, for commissions due him as agent for the defendant. He alleged “that plaintiff believes that at least the amount of Three Hundred Fourteen and 37/100 Dollars ($314.37) is due him for commissions from the policies sold under said contract.” He further asked for an accounting.

Defendant filed its plea to the jurisdiction of the court because it appeared “from the face of the petition that the matter in controversy, exclusive of interest, amounts in value to less than $500.00,” etc. The trial court sustained this plea and dismissed the suit at plaintiff’s costs. On appeal, the Court of Civil Appeals affirmed. 408 S.W.2d 525. We affirm the judgments of the courts below. Petitioner says that his suit was one for an accounting and that it was properly brought in the district court, as that court is a court of general jurisdiction.

The allegations of plaintiff’s petition are that on February 13, 1961, plaintiff entered into a contract with defendant to sell insurance policies in defendant’s company as defendant’s agent; that plaintiff has in all things complied with the “stipulations, conditions, and agreements” placed on him by the contract, but that defendant has failed and refused to pay plaintiff the commissions due him on the policies “pursuant to the provisions of said contract.” Plaintiff further alleged that he has “demanded an accounting for said commissions” and has been refused such accounting by defendant at all times.

Then follows the only allegation of any sum due plaintiff by defendant: “That plaintiff believes that at least the amount of Three Hundred Fourteen and 37/100 Dollars ($314.37) is due him for commissions from the policies sold under said contract.” In his prayer plaintiff prays that defendant be required to make an accounting, “that plaintiff have judgment against the defendant for at least $314.37, and for such other sums as shall be found due on such accounting,” and for general relief.

Petitioner’s contention is based upon the fact that the constitutional and statutory provisions confer upon the district court general residuary jurisdiction. This contention has application only when considered in connection with the language of Art. V, Sec. 8 of our State Constitution, Vernon’s Ann.St. That language does not say the district court has jurisdiction of all suits that may be brought.

The exact language of the residuary clause is, “The District Court shall have original jurisdiction * * * [in enumerated cases] when the matter in controversy shall be valued at or amount to five hundred dollars exclusive of interest * * * and shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution * * Art. 1909, Revised Civil Statutes 1925, as amended, contains language of similar import.

The residuary clause of the Constitution applies only to those cases “for which a remedy or jurisdiction is not provided” by law or the Constitution. The jurisdiction given by this language is not concurrent with the jurisdiction of the other courts, but is an exclusive jurisdiction within its field. (All emphasis is that of this Court.) The only way the district court’s jurisdiction could be sustained would be to hold that this is a suit in equity. That is not correct. This suit is an ordinary suit on a written contract of employment which plaintiff attaches to his petition. Plaintiff’s demand is a money demand.

The residuary clause of Art. V, Sec. 8 applies only to causes of action for which a remedy or jurisdiction is not provided by law or the Constitution. The Constitution provides that suit must be brought in the county court for a debt that exceeds $200.00 and does not exceed $500.00. Rule 172, Texas Rules of Civil Procedure, provides among other things that when an investigation of accounts or examination of vouchers is necessary in any suit, the trial court “shall appoint an auditor or auditors to state the accounts between the parties,” etc.

This plaintiff’s cause of action herein is not an equitable action; it is not an action for which no remedy nor jurisdiction is provided by the Constitution and the law. Therefore, it is not entitled to be heard in the district court, but must be heard in the county court. With regard to the contention that the allegation seeking an accounting makes an equitable action of plaintiff’s demand and also makes the residuary clause of Art.

V, Sec. 8 controlling, there is an excellent annotation in 3 A.L.R.2d 1310, entitled “Availability of Equitable Remedy of Accounting Between Principal and Agent.” In this annotation there is quoted from Restatement of Agency, Vol. 2, Sec. 399, the rules governing an accounting suit between principal and agent: “A principal does not have a bill for an account or other equitable relief against an agent merely from the fact of agency or from the fact that the agent has received something for the principal.

Equitable relief may, however, be granted not only on the ground that there is no adequate remedy of law, as where an injunction is sought, but also where there is a close fiduciary relationship. * * * On the other hand, unless there is such a complication of accounts that it is difficult for the machinery of the law courts to cope with them, the principal ordinarily cannot bring a bill in equity for money due; if his remedy otherwise would be solely in the courts of law, he cannot bring a bill for an account merely on the ground of the agency relationship.” These same rules apply to an action of an agent against his principal. 3 A.L.R.2d 1369 et seq., § 19.

This annotation also quotes from 4 Pomeroy Equity Jurisprudence, 5th Edition, Sec. 1421, “The instances in which legal remedies are held to be inadequate and thus a suit in equity for an accounting may be brought are stated to be:

(1) Where there are mutual accounts between the parties, that is, where each of them has received and paid on account of the other, as distinguished from matters of set-off and accounts on one side only.

(2) Where the accounts are all on one side but there are circumstances of great complication or difficulties in the way of adequate relief at law. To determine what degree of complication is required for a pure accounting the rule was established by the English courts that the account be so complicated that a court of law would be incompetent to examine it by application of the trial procedure at nisi prius proceedings although many of the present statutes and practice rules governing courts of general jurisdiction enable matters of accounting to be referred to officers or referees.

The only test recognized by modern decisions is that if the facts and accounts presented relate to so many different transactions and items in such relationship to each other that it is doubtful whether adequate relief could be obtained at law, equity should entertain jurisdiction. * * * ” From the above annotation and the excerpts we have cited, we find that this suit does not qualify as an equitable proceeding for which our Constitution and statutes provide no remedy or jurisdiction.

The general rule is that the allegations of the plaintiff’s petition must state facts which affirmatively show the jurisdiction of the court in which the action is brought. Brown v. Peters, 127 Tex. 300, 94 S.W.2d 129 (1936); Smith v. Horton, 92 Tex. 21, 46 S.W. 627 (1898); Texas & N. O. R. R. Co. v.

Farrington (Tex.Com.App., 1905), 40 Tex.Civ.App. 205, 88 S.W. 889. “The rule of law seems to be well settled in this state that, if plaintiff pleads generally a state of facts, and goes further and pleads specifically and particularly on the same subject, he cannot rely upon the general allegations, but is confined in his recovery to those specifically and particularly pleaded. Specific allegations will control those of a general character.” (Citing authorities.) Houston Printing Company v. Hunter (Tex.Civ.App. 1937), 105 S.W.2d 312, 318, aff’d 129 Tex. 652, 106 S.W.2d 1043.

In our case the Constitution and statutes do give jurisdiction to various courts to determine suits for debt, based on the allegations in the petition as to the amount in controversy. Also, in our case' the only allegation as to a definite debt is $314.37, and that amount is not within the jurisdiction of a district court. We affirm the judgments of both courts below. CALVERT, C. J., concurs in the result.