*1 213 court had sustained a demurrer to the plain- evidence the close of in chief, jury finding tiff’s ease but the had no the issues as judg- to defendant her name been mentioned point appeal judgment ment. was made on must entirety reversed in its dispose because it failed as to the issues passing to all the to suit. In on it this court said: judgment formally dispose “The failure of the as the issues appearing the defendant Koch is error Marie on the face of the proper. respect record But error is with to which one the de fendants, kind, complain. case of this can not in the Plaintiff privileged bring first instance was his action all of the any Having them, or number as saw defendants lesser he fit.

brought against all, right any it one he had discontinue as to may or them, more of have been advised. He could dis have any stage any missed the action as one more of them at appeal. court on proceeding, even after the cause had reached this rights are, paramount right plaintiff were, These among joint majr which tort- contribution exist defendants 211, 216, 45 way 144 S. W. Co., v. Rail Mo. Berkson feasors. v. S. W. 49, 60, 311 277 Flenner City, v. Kansas

Gerber [Lavig Co., 290 W. 78.” App. S. M. R. Southwestern (2d) Dietzel, S. W. non just handed clown after referred to was opinion in the case review, pronounce- but its Appeals of the. Court decision prior decisions Tn innumerable nor novel. new neither ment recognized applied. With tacitly had been involved principle plainly in con- Appeals is Court of the decision decisions those quashed. All concur. therefore are opinion Its flict. W. Referee, Appellant. Frank H. Fisse,

B. G. (2d) 606. One,

Division 1931. June *3 appellant. Robert Bicrnett and Samuel H. Liberman for respondent. E. T. & B. Allen for C.

HYDE, C. This is proceeding in the Circuit City Court of the St. Louis a writ of prevent appellant, as referee, in the case of Curry, Charles C. plaintiff, v. B. G. Dahlberg, defend ant, pending in the circuit court of city, enforcing said from an order him in that case.

From appears the record it that on November 1923, the case of Curry Dahlberg pending in the court, circuit and that on that petition date second amended was filed. The character origi- of the alleged nal is not shown. Tt was in the second peti- amended commerce, Dahlberg, tion in 1914 expert, agreement made an Curry Curry providing with was to assist him to secure con- handling tracts for the claims refunds shippers of forest products over various railroads. basis of these claims were freight-rate overcharges acquainted railroads. with many agreement shippers. alleged such provided Tt was Dahlbei'g subsequent that on all contracts which July 9, secured Curry, except either with or without the assistance of contracts through specified sources, Dahlberg secured certain pay Curry was to gross per cent received him from the claimants, except that, on claims which were not settled until after trial, only per cent, court was to receive fifteen on claims Supreme which Aventto trial in the United States Court he toAvas per ten cent. receive actively engage in his did in solicit- fully agreement upon

ing part. performed contracts and He *5 agreement very large of alleged further under number that the shippers; large of number the contracts Averesecured from that a by compensation the claimants and claims have been recovered the by Curry’s tAventyper Dahlberg; cent of this com- received and that alleged petition that the claims on pensation then became due. recovery had which been and which form the basis of this ac- & tion the St. Louis San were Company. Francisco Railway alleged were to claims have been These settled on day the 26th of by agreement, June, 1917, “A,” marked which was attached to part petition of and made It reference. was stated that un- compensation was paid Dahlberg der this settlement to on October 5, 1917, aggregating $217,648.84, which was partly received in cash, bonds, preferred partly partly and and common stocks of the Company. Railway This settlement Curry was without trial in court. twenty compensation per cent of $43,529.77 was containing exhibit, securities. cash and An a list of shippers’ agreement, attached, claims settled under this “B,” w'as marked part petition, showing of and made a the claims secured sub- July sequent 9, 1914, interest, which claimed to have $451,498.04, which totaled and also claims Dahlberg collected by It $217,648.84 in which had no interest. also out set compensation Dahlberg the total of received and that the amount $43,529.77. accounting Demand for an claimed of the gross compensation Dahlberg received and refusal to either ren- pay alleged. also der an were account was for prayer judgment per for cent by Dahlberg which, and received the cash securities at par, taken aggregate Curry’s $43,529.77, proportion with interest on of the and paid October cash from dividends on the securities Dahlberg date, required since account for and pay represented plaintiff sum the difference between the highest judgment of the market value securities date of and the prayer value of the same since October 1917. The further asked Dahlberg complete rule to make full and the court to statement agree- he received all which terms of the together ment, with a full statement of all contracts covered gross agreement process liquidation and the amount com- they if pensation paid, which he is receive therefrom are rightfully Curry, for all further asked sums due jurisdiction court suit purpose to retain for the asked the rightful compelling to him account share all paid him when compensation recovered the same to him. Curry’s first the same second amended as the allegation petition except there in it that an amended was no demanded, accounting prayer had been was no there with pro- or for relief reference contracts yet two de- liquidation collected. filed cess ground not sufficient to the facts stated were murrers overruled, filed an Both and he a cause action. were constitute *6 containing general denial; alleging answer that Curry now' had claims, assignment no interest because of- thereof and ad- judication bankruptcy; asking by way and equitable counter- agreement claim that the be reformed if it should be construed to which cover claims were obtained him without Curry’s assistance, Curry proportion or to entitle to compensation claimed by him, alleging that was so through it written mistake. appellant appointed here was referee the Circuit Court of City Louis, of St. place to take former who referee had try

resigned, and authorized to report all issues and findings. his appellant, referee, evidence, After as had heard an order 8, which, November 1926, on as later modified, he found that Curry Dahlberg entitled to an from on all contracts subsequent July to by plaintiff’s whether obtained as- not, except exempt agreement. sistance those under the He found that on all such contracts was entitled per to receive necessary go trial, cent where was not to to fifteen per cent ease trial, claims were per settled after and ten cent in claims went case Supreme to trial Court of United States. The order Dahlberg required appellant, to file on 27, 1927, before or before May identifying same, adjusted contracts, a statement account as to gross with name of and railroad, compensation received, claimant compensation unadjusted and as due thereon and to con- Avith the applied tracts name of claimant railroad. and prohibition, court, opin- this court for a to AA'rit but this Avithout preliminary ion, refused to issue a writ. then a motion He filed part of requiring out the the order him to the state- strike file This motion referee. ment. OA'erruled AA”as

Thereupon, Dahlberg, plaintiff, proceeding commenced this prohibit appellant, referee, a writ of from en- forcing petition alleged this order. This the record facts above Curry, filing open upon and stated that set out account, remedy open on of an action account elected the right accounting; Curry’s thereby abandoned his to a suit for an accounting, that the petition did not state a cause of action for there was before showed that petition and the evidence the referee appointed necessity accounting; referee no 1426, Revised Statutes the first subdivision of Section items; try long the order account some discovery compels compels referee evidence prove the items be used prepare exhibit to deposi- contrary providing account, of Missouri to the statutes same; that prove papers production tions and for of books not ac- which had discovery compels the order erued at tlie tlie institution of the suit and on contracts not ad- justed; responsive order petition, to the and enforces recovery a different cause of inconsistent with the one action legal stated; power is one which has said order the referee no *7 Dahlberg damage; will irreparable to make and cause and that prevent enforcing prohibition to the referee from is his adequate remedy. preliminary

A issued, appellant writ was and made return and facts; he answer thereto which admitted the denied that the record open ap- petition upon was and that the was an account referee account, al- pointed try generally; such an denied other matters leged jurisdiction parties subject-matter and that he had over the Curry Dahlberg; by him in the case of v. stated that order made the upon pleadings; was a tlie and his consideration of evidence that may rulings excepted Dahlberg and have been and be orders course; prior reviewed in due that the submission .of case Carry’s him, had overruled demurrers to the circuit court grounds urged review of his upon proceeding; ruling filing of his report completion and before the before the and premature duties to him would be under the order reference untimely; estopped filed was motion had stipulations claiming that his ac- into from he had entered law; Supreme an that the Court Missouri tion was action of ground prohibition upon same application for writ of denied adjudieata. urged, was res as now and that the matter alleged the order of the referee Respondent, reply, in his estoppel, jurisdiction, was in of his denied excess ad- was not a conclusive writ this court that the denial judication. making cause, judgment entered Upon a trial of the writ, appeal is from absolute. This

preliminary brought judgment. that the suit appellant The contends accounting against Dahlberg for an an action Was account to file statement requiring his order says ac- hand, on the other proper. Respondent, therefore first must therefore an account. We tion law action at petition. in the is stated what kind of an action determine recognized under which are actions There are three kinds of be- of accounts Por determination proper as remedies circumstances parties: tween by means action law This a common is Action of account. duty legal to account who were persons of which compelled to ren were money another or Property for The 602, sec. J. C. 11.] account. such [1 der required an action of account is relationship to set out a of the a state of facts that would entitle claimant to an. (cid:127) accounting; alleg’e accounting made; that no had been and pray money judgment, for a but need not ask that an account taken. judgments which are incident to such an judg action are two: account, judgment

ment that defendant do after the account [Hughes Woosley, balance found due. Sand Mfg. Bogie, wich 298 W. Co. 56.] accounting. is equity. Second: Action for an This action jurisdiction put equitable The best considered authorities accounting upon grounds, to-wit: three The need of a discovery, complicated character accounts an(j †]16 fiduciary existence of a trust relation. given

relief accounting which is in this action is an and a taking the balance found due on account. C. J. sec. [1 equity jurisdiction inadequacy The basis of remedy. legal J. see. Johnson v. Star Bucket C. [1 *8 Bayer Pump Co., 414, 274 202 S. Steam Soot Ray W. 282 (Mo. (Mo.

Blower Co. Marshall App.), W. Palmer v. (2d) remedy particularly App.), applicable 24 S. W. It is a 229.] 618, J. And complicated to mutual and C. sec. accounts. [1 J. relationship eases C. fiduciary where a confidential or exists. [1 621, sec. 68.] or assumpsit of debt

Third: Action on an action account. This is property money performed, which recovery is for for services non-perform delivered, damages money sold for the and loaned or when the simple contracts, express implied, or ance of by adequately conserved the rights of will parties the money. 648, C. secs. J. payment receipt [1 1381, 769 and statutes, Our Section Section 146; 5 C. J. sec. 6.] requirements of change law common Revised Statutes the law side our “on the in Such actions are pleadings this action. jury (1) By court without the

courts, to be tried: there by jury, (3) tried to be (2) 'a circumstances, to be tried named 61, and l. c. cases S. W. Bogie, Co. v. Mfg. referee.” [Sandwich cited.] Curry in case of petition the Considering the amended second remedies, to us that does it seems Dahlberg view of the above in an action in account or law action a common either state relationship no accounting. It sets forth that defend- require would which state of facts no grounds requisite allege of does it Neither ant account. contrary, it shows equity, but on accounting to an petition definitely stated .the adequate. It is remedy is

legal recovery “that the claims on which has been made and which form complaint of this the basis were the St. Louis and San Railway definitely Company.” Francisco It is stated that “settlement of said claims was on 1917.” June, the-26th day definitely A, It is part set forth in Exhibit attached made a by reference, exactly what the claimants received from Railway Company definitely in settlement of their claims. It is compensation stated in the received making $217,648.84. is settlement It also stated what part cash, part bonds, of this and what received what definitely part in stocks. is en- It is stated claims he twenty judg- per this, $43,529.77, prays titled to cent of or and he proportion ment for this amount. It true he states “his is compensation twenty per $43,529.77, is cent, said cash and compensation paid securities of the to defendant.” It is also true prays judgment “for per that he cent of the cash and 5, 1917, securities on him received defendant October twenty, per since retained which said cent cash and securities aggregate $43,529.77, plaintiff’s par pro- at with interest on taken portion 5, 1917, together of the cash from October with dividends paid However, date.” clear on said securities since that it seems $43,529.77, allegations of is a suit for prayer therefor, taking par, amount due and the the securities claiming to be entitled to for his mean that considering contract, the basis of securities services, under the on having having par by Dahlberg, or been been received at received $217,648.84. petition is This view of the further confirmed B, part petition, which con- Exhibit attached to and made requirements Section Revised 1929. forms Statutes settled for which *9 exhibit a list of the claims contains This twenty per compensation of the to entitled to cent re- claimed be by Dahlberg. amount of these claims and ceived It shows the total paid Dahlberg by shippers compensa- his the total amount as Curry’s proportion is tion, to-wit, $217,648.84, and that sets out judg- per cent, $43,529.77, prays for which or the amount he in ment the suit. see, Dahlberg for a amount therefore,

¥e that sued definite ; money; bases upon knew settled which he that amount the claims ag petition; stated the stated them an exhibit attached to by gregate compensation Dahl- amount of the received berg them; partly this was settling stated that for an(j securities, but claimed he Was en par^y aggregate amount of twenty per settled cent on claims titled says amount which -were-accepted for the though the securities

223 Dahlberg received. If the securities were worth than less was his proportion only amount entitled to of their actual value, Dahlberg. Curry a matter of defense to up be set prejudiced be if would not he did not make this defense. Where a in profits for a of a contract share transaction is mode of de- termining compensation labor, money for is and no invested in such transaction, remedy 604, is assumpsit. an action in C. J. [1 clearly sec. That is the situation out It not ac- set here. is an 12a] partition for in kind. Nor tion the securities are the securities' special peculiar or to have value which cannot be com- money. certainly rights for in pensated The action is one where the adequately payment will be conserved re- money. ceipt of hold this is an an We action on therefore account. commenced, Dahlberg

It be has that since this suit may settled may claims with other railroads. It other be they find what does not know cannot out right equity ^ of action are- that be has ma3r an for claims. accounting for these com- so, it, action he did If he can but that is commence mence. action, clearly

Under this view the order the referee was jurisdiction. excess however, that, Appellant, so, Dahlberg contends even had adequate remedy appeal is therefore not High’s proper According Extraordinary in this case. Remedies (3 Ed.) necessary section 764a: "Three conditions are First, granting warrant of the relief: court, officer or person, Whom is sought, is about to exer- judicial cise quasi-judicial second, power; the exercise power law; third, such unauthorized that it will result in- jury adequate for which no remedy other writ exists.” The reaches acting in excess jurisdiction, acting as well there is no where jurisdiction. McQuillin, 256, ex rel. 262 171 Warde Mo. [State 72; 517, W. S. ex rel. v. McQuillin, State Bernero 347;W. Muench, State ex rel. McManus v. 217 Mo. 117 S. W. Ry. State ex rel. Tracy, Terminal Co. v. 237 Mo. S. W. Denton, State ex rel. Minnesota Insurance Co.

129 S. W. In latter case an order of a circuit court in foreign case corporation was of a power make, character which the court no therefore jurisdiction. its proper excess of Prohibition held *10 remedy prevent its enforcement. writ has issued to pre- also issuing injunction a vent court from an it is evident from where 224

the that no is or cause oí action therefor can be stated. Owens, 232; v. 36 42 Mo. Mead, Mo. Vitt v. [Thomas 512.] exercising- appellant judicial In this case the referee was an officer try power. authorized to plead He the the issues law, ings power, an and it was on action at to conduct a beyond equity accounting. of the petition, trial No amendment entirely action, which did not an new' of state different cause give power. could the in which This par court it was filed such ticularly requiring part obvious order an the the on compensa unsettled contracts which no cause of action for might yet tion had accrued and never accrue. While right appeal yet trial, would have the the conclusion the annoyance appeal prevent expense, not would vexation and making through a going the statement and trial the referee before him. An appeal action which is would an not remedy. therefore, A similar situation not, adequate be an arose Carrington, Utah, 5 531. In that People the case of ex rel. Pierce v. of Utah prohibition Supreme a writ from Court casé issued Territory pro him prevent from to a commissioner that court ceeding contempt for an article punish newspaper editor a defendant, published It contended there paper. power, have such relator though the commissioner did not that even court, however, remedy appeal. held adequate annoyance expense, appeal prevent vexation would not whether, question appeal be trial; merely on would that the acting authority; without or not commissioner going through adequate remedy for such that would remedy, proper prohibition was a trial. hold here that We right preventing City of St. Louis was the Circuit Court of enforcing his from order. appointed by it the referee adjudícala matter was res' further contends Appellant order, prevent enforcement of writ of because modified, In this court. was denied it was before y^ew jfopg court, mere refusal of of this 0£ on merits preliminary was not decision writ court to issue a have a bar it must former To case. constitute Co., Mo. Co. v. Fire Ins. Hartford merits. been on the [Wilson Rys. Co., 147 S. 243 Mo. 266; v. United 1, 254 S. W. Johnson 9;W. 457, 100 S. Baldwin 201 Mo. Harp, W. Couch v. Moore, Davidson, 40 W. Wells circuit in the contention we merit do see Neither overruling general reference, demurrers court, prior to the cause of action it stated a held that Curry’s petition, *11 ground ing. Tlie were account demurrers on tire tliat there for an facts stated in were not sufficient a just constitute The cause action. could as court properly ground demurrers upon overrule the assumpsit. stated a cause action of Overruling any general demurrers statement without grounds certainly can not be to be a construed determination of the kind of stated action petition.

Appellant’s final contention estopped is that is from con- tending Curry’s action equity, was not one in he en- because stipulation case, being

tered equity, into a this may assigned equity be one of divisions of the City Louis, Circuit Court of the of St. made certain admissions to show ivas him an claimed that the case treated equity case. material, respondent admissions not seem These do stipulation intimates Louis that such would be understood St. only However, by his non-jury

to mean the case case. Curry’s up answer to petition, second amended set equitable equitable relief, namely, defense and asked affirmative orderly way try reformation of contract. then to the cause equitable was to this counter dispose first of the issues raised try legal petition. claim and stated then action [Martin Threlkel, 316 v. 54 W. Keltner Turnbaugh, Mo. v. proper for the reason S. W. This would 462.] Evidently,

stipulation equity case division. on to transfer the counterclaim, Curry contains prevailed, the referee’s order against Dahlberg’s construing con finding contract of facts view, ac How'ever, not, transform an tention. it could accounting and could not tion on an account into action was not power of action which try on a cause confer the referee questions are decide such power him. have before Courts and mere consent pleadings presented their Mc jurisdiction. ex rel. not confer other [State counsel would Phillips, Kessner cited Muench, l. In c. Manus that case immaterial whether said it was appellant, the court law, event, for in either one be treated as one said, it is we have From what been the same. result would have not be here. that would true evident that Ferguson and is affirmed. court judgment of the circuit CO.,

Sturgis, concur. The foregoingopinion by Hyde, C., adopted PER CURIAM: judges All concur. opinion court. as the