Meyers v. Field, 37 Mo. 434

Meyers v. Field

37 Mo. 434 | Mo. | 1866

Holmes, Judge,

delivered the opinion of the court.

The petition in this case appears to have been drawn in utter disregard of the rules of pleading, either at law or in equity. It is neither a good bill in equity, nor a good cause of action at law. The transactions disclosed by the facts stated in it would seem to amount to a partnership in a joint adventure, upon which-; if the petition were properly framed, it is probable that the plaintiff would be entitled to equitable relief, as upon the dissolution of a partnership, and for an account to be taken, and stated for the purpose of ascertaining the balance of account which might be found to be due the plaintiff as a partner. The arrangement seems to have been one of those not uncommon attempts on the part of the parties concerned, either designedly, or in ignorance of the law, to make agreements and arrangements among themselves for conducting any business, in contravention of the rules of law, whereby they seek to avoid the name, duties, liabilities and responsibilities of partners inter sese, or as to third persons, while entering into agreements and transactions which, by the law of the land, constitute them partners, whatever they may please to say or think about it, or by whatever name they may choose to call it. It would appear that the defendants were to furnish a large part of the capital stock in trade, and that the plaintiff was to put in his personal services and skill, as well as to furnish a part of the capital stock; that his work as a manufacturer was to be mixed with the raw material supplied by the defendant or himself; that for the supplies of goods which he should receive from the store of the defendants’ separate firm, they were to be allowed in settlement their own wholesale prices, whereby their share in the profits in the joint business would be ascertained and limited ; that the plaintiff was to receive, in full compensation for his services, skill, and attention to the business, all the profits which might be realized on the sale of the manufactured articles over and above the costs and expenses, the capital invested, and that portion of the ■profits which would go the defendants in the shape of their *440wholesale prices, whereby all the losses, if any could happen under such an arrangement and course of business, would be thrown on the plaintiff, in diminution of his share of the profits; that real estate was leased or purchased for the use of the business, and expenses incurred on the joint account, with the knowledge and consent of the defendants ; that balances were settled from time to time on this basis, and that at the close of business a balance of account on the whole transaction still remained unsettled; and that the defendants, in violation of the rights of the plaintiff, as he claims, suddenly put a stop to the business by stepping in and assuming to themselves the entire possession and exclusive control of the whole concern. In such case there is such a community of interest in the capita! stock, or in the profits and losses, or in both, as will make the transaction a partnership (Sto. Part. §§ 23, 27) ; and the proceedings in this case sufficiently show that any fair adjustment of the rights of the parties must require the interposition of a court of equity, and would constitute a proper subject of equitable jurisdiction in the settlement of partnership accounts, and that no adequate and complete remedy can be had in the strict course of legal proceeding.

The petition is not framed upon such a case, though some of the facts are stated. It does not ask for any equitable relief. It does not distinctly allege that there was a partnership; nor does it pray for a dissolution to be decreed, nor for an account to be taken and stated, nor for judgment for the balance of account that may be ascertained to be due the plaintiff. It contemplates legal relief only. The plaintiff assumes to state his account for himself, and asks judgment for a specified sum as upon an indebtedness due him at law.

The l'espondent presents his case here as an action of trover, and so the referee seems to have considered it in his proceedings and report. It was plainly not a proper case for action in the nature of trover. The petition is not so framed. Where matters of equitable jurisdiction are mixed and blend-. *441ed with matters of legal cognizance in the same count, the court will not undertake narrowly to sift the petition in order to see if the essential elements of a cause of action at law can, by any construction, be made out and separated from the rest. Such a petition may very well be held to be de: murrable for that reason alone, as not containing a cause of action stated with that degree of certainty which the law requires. Where two or more good causes of action are clearly stated in the same count, it has been held that the irregularity in pleading was not one or the enumerated causes of demurrer, and that the proper course would be a motion to the court to compel the plaintiff to elect on which cause of action he would proceed. (Mooney v. Kennett, 19 Mo. 551.) If no good cause of action be distinctly stated, the objection is not waived by failure to demur, (Ivory v. Carlin, 30 Mo. 142,) but may be taken on motion in arrest, or writ of error.

The distinction between law and equity has not been abolished by the new code of practice. Equitable rights are still to be determined.according to the doctrines of equity jurisprudence, and in the peculiar modes of proceeding which are sometimes required in such cases; and legal rights are to bo ascertained and adjudged upon the principles of law, and the rules of proceeding at law are in many respects very different from those which are applicable to equity cases. Pleadings should, be drawn with reference to these distinctions, though in the forms prescribed by the statute. Where the petition is framed for legal redress, the plaintiff cannot be allowed to prove equitable rights, though the facts be stated to some extent in his petition. If he seeks equitable relief, the facts must be stated in such manner as to show that he is entitled to the relief prayed for, as under the former practice ; and if he claim redress at law, the essential elements of his cause of action must be stated with such clearness and certainty as to be intelligible to professional, if not to ordinary, comprehension. (Richardson v. Means, 22 Mo. 87; Maguire v. Vice, 20 Mo. 427; Hesse v. Mo. State Mut. F. Ins. Co., 21 Mo. 93.)

*442. The statute requires that the petition shall contain, not only a plain statement of the facts constituting the cause of action, but also a demand of the relief to which the plaintiff may suppose himself entitled; and if a recovery of money be demanded, the amount thereof, or such facts as will enable the defendant and the court to ascertain the amount, must be stated. These provisions evidently contemplate that the relief demanded may be either such as may be granted in equity,, or such as may be given at law, according to the nature of the case stated in the petition. (R. C. 1855, p. 1229, § 8.) The provisions of the statute concerning the trial by the court or jury recognize the same distinction of cases at law, or in equity. (Art. X., §§ 11-18.) Any issue of fact in the action may be referred to a referee upon the written consent of the parties; but where the parties do not consent, the court can order a reference only in certain specified cases; and these are such as fall within the jurisdiction of courts of equity, and in which the constitutional right of trial by jury cannot be demanded.

In this case the court ordered a reference without the written consent, of the parties, thereby treating it as a case of equitable jurisdiction; but the referee appears to have proceeded as if it had been an action at law. There was .no trial by jury. A prayer for relief was an essential part of a bill in equity, and a demand for relief in accordance with the facts stated in the petition is now an essential ‘ part of the petition.

It is deemed unnecessary to review in detail the exceptions to the report of the referee. In the review we have taken of the case, the proceedings were erroneous from the beginning. We hold that the petition, was demurrable ; that the defect was not waived by the failure to demur, and that the motion in arrest should have been sustained.

The judgment is reversed and the cause remanded, with leave to the plaintiff to amend his petition.

The other judges concur.