103 P.2d 27 | Wash. | 1940
Lead Opinion
The pertinent portions of the complaint are:
Paragraph IV alleged a balance due of $73,118.92.
Paragraph VI contained a description of the mortgages.
Paragraph IX contained an allegation relative to attorneys' fees.
Plaintiff demanded judgment against defendant Columbia Agricultural Credit Corporation in the sum of $73,118.93, with interest and attorneys' fees. It asked that the remaining defendants be required to account to plaintiff for all mortgaged property sold and disposed of by them, and that plaintiff have judgment for all amounts found due and owing upon the accounting.
In a supplemental complaint, plaintiff admitted certain additional payments on the note, which reduced the balance due to $65,521.30.
Defendants, other than the Columbia Agricultural Credit Corporation, demurred to the complaint upon the grounds (1) that several causes of action had been improperly united; (2) that the complaint does not state facts sufficient to constitute a cause of action against said defendants or either of them. The demurrers were overruled.
The answer of the Columbia Agricultural Credit Corporation admitted the making of the note and denied the other allegations of the complaint.
The answers of the American Fruit Growers, Inc., and Northwest Fruit Exchange admitted the making of the note, denied the alleged conversion of fruit, and set up affirmative defenses which it is unnecessary to mention. *190
The case, tried to a jury, resulted in a verdict in favor of plaintiff and against the Columbia Agricultural Credit Corporation in the sum of $65,521.30, together with interest and attorneys' fees in the sum of $2,750, and against the American Fruit Growers, Inc., and the Northwest Fruit Exchange in the sum of $65,521.30.
Motion for judgment notwithstanding the verdict and in the alternative for a new trial was made and denied. The court entered judgment upon the verdicts, from which American Fruit Growers, Inc., and Northwest Fruit Exchange, a corporation, have appealed.
Appellants contend that, under the provisions of Rem. Rev. Stat., § 296 [P.C. § 8380], respondent could not join the action of conversion with the action upon the promissory note. By proper objections and motions, appellants preserved their rights as against the pleadings.
There are two causes of action joined in the complaint against five defendants. One cause of action, that concerning the liability upon the promissory note, an action upon contract, is directed against Columbia Agricultural Credit Corporation; the other, against all of the defendants, sounds in tort for conversion of the fruit which was mortgaged to Columbia Agricultural Credit Corporation and the mortgages assigned to respondent as security for the payment of the note. May such causes of action be joined?
Rem. Rev. Stat., § 296, provides:
"The plaintiff may unite several causes of action in the same complaint, when they all arise out of, —
"1. Contract, express or implied; or, . . .
"8. The same transaction.
"But the causes of action so united must affect all the parties to the action, and not require different places of trial, and must be separately stated." *191
All of the defendants were charged with conversion, but only one, the Columbia Agricultural Credit Corporation, was sued upon the promissory note. It is clear that an action upon the note could not have been maintained against appellants, for the reason that they did not sign the note. Rem. Rev. Stat., § 3409 [P.C. § 4089]; Frazey v. Casey,
[1] Two causes of action, though arising from the same contract, cannot be joined unless all parties are affected by all the causes of action. Harmon Co. v. Eastern Furniture Co.,
[2] Actions upon contract cannot be joined with tort actions against different persons where action against one arises excontractu and the action against the other arises ex delicto.Willey v. Nichols,
[3] There is a misjoinder of causes of action in cases in which the complaint shows that all of the parties are not similarly affected. McAllister v. Harper Son,
The following statement from Pomeroy's Code Remedies (5th ed.), 559, § 367, properly states the rule to be followed in order to ascertain whether causes of action arise out of the same transaction:
"In order that causes of action may arise out of a transaction, there must therefore be a negotiation, or a proceeding, or a conduct of business, between the *192 parties, of such a nature that it produces, as necessary results, two or more different primary rights in favor of the plaintiff, and wrongs done by the defendant which are violations of such rights. The proceeding, or negotiation, or conduct of business, must, of course, be a unit, one affair, or else it would not be a single transaction; and yet it must be in its nature complex, for it must be the origin of two or more separate primary rights, and of the wrongs which violate them. In order that this may be so, the facts from which the different primary rights flow must beparts of, or steps in, the transaction; and, for the same reason, the wrongful acts or omissions of the defendant must be parts of the same transaction. If a single transaction — that is, a single, continuous, and complex proceeding, or negotiation, between the parties — is analyzed and reduced into its series of acts and defaults, and some of these acts are the facts from which spring one primary right in favor of the plaintiff, and other acts are the facts from which spring a different primary right in his favor, and others still are the violations or breaches of these rights, these two causes of action do truly arise out of the same transaction."
[4] The obligation to pay the debt evidenced by the promissory note and the conversion of the mortgaged property did not arise out of the same transaction. The giving of the note and the assignment of the crop mortgages constituted an independent transaction which had no relation to the conversion. The appellant corporations had no part in the execution of the contract, and they were not obligated to pay the note; neither were they interested in any of the thirty-two crop mortgages. The character of relief sought against appellants was not the same as that sought against Columbia Agricultural Credit Corporation.
Respondent contends that German-American State Bank v. SeattleGrain Co.,
An examination of those cases does not disclose holdings as urged by respondent. The question of misjoinder was not before the court in the first case. In the second case, we notice that the question arose upon a wholly different basis, and that it was not decided by the court; and in the last case, it is apparent that error by misjoinder of causes of action was not urged upon appeal.
Capital Nat. Bank v. Johns,
We are compelled to hold that there was a misjoinder of the causes of action, and that the demurrer to the complaint should have been sustained.
Judgment is reversed, with instructions to dismiss the action against appellants.
MAIN, MILLARD, and ROBINSON, JJ., concur.
Dissenting Opinion
I dissent.
"Refusal to surrender the proceeds of a mortgaged crop constitutes a conversion of the sum withheld; and in an action to foreclose the mortgage, such a converter is properly made a party." Wenatchee Production Credit Ass'n v. Pacific Fruit Produce Co.,
I think the judgment should be affirmed. *194
Upon a rehearing En Banc, a majority of the court adheres to the Departmental opinion heretofore filed herein.