Johnson v. United Rys. Co. of St. Louis

• Decision Date: 31 May 1912
• Citation: 147 S.W. 1077
• Parties: JOHNSON v. UNITED RYS. CO. OF ST. LOUIS et al.
• Court: Missouri Supreme Court

147 S.W. 1077

JOHNSON v. UNITED RYS. CO. OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1912.

1. PLEADING (§ 204) — PETITION — SUFFICIENCY — DEMURRER.

Where a petition states a good cause of action for either an injunction, the rescission of a contract, or an accounting, or all three collectively, a demurrer thereto should not be sustained; but the court must separate the good grounds for a recovery from the bad, and regard the latter as surplusage.

2. JUDGMENT (§ 590) — RES ADJUDICATA.

Where the court properly sustained a demurrer to a petition praying for an injunction, rescission of a contract, and for an accounting, on the grounds that the facts did not constitute a cause of action for either relief sought, a petition in a subsequent action, predicated on the same facts and asking only for an accounting, is demurrable.

3. JUDGMENT (§ 590) — RES ADJUDICATA — CONCLUSIVENESS.

A judgment on the merits bars a subsequent action for the same relief.

4. JUDGMENT (§ 572) — RES ADJUDICATA — CONCLUSIVENESS.

A judgment sustaining a demurrer to a petition, which shows that the facts thereof are well pleaded, but constituting no cause of action, is a judgment on the merits, and bars a subsequent action on the same cause of action.

5. LIMITATION OF ACTIONS (§ 100) — ACCRUAL OF CAUSE OF ACTION — FRAUD — ACTIONS BY STOCKHOLDERS.

Rev. St. 1909, § 1889, subd. 5, providing that an action on the ground of fraud shall be deemed not to have accrued until the discovery by the aggrieved party, at any time within 10 years, of the facts constituting the fraud, governs a suit by a stockholder, for the benefit of the corporation, for an accounting and the recovery of alleged profits growing out of an alleged fraud perpetrated on the corporation; and limitations begin to run from the time that the facts are brought home to the knowledge of the stockholder.

6. LIMITATION OF ACTIONS (§ 179) — ACCRUAL OF CAUSE OF ACTION — FRAUD — ACTIONS BY STOCKHOLDERS — PLEADING — PRESUMPTION.

Where the bill in a suit by a stockholder, for the benefit of the corporation, for an accounting and the recovery of profits growing out of fraud on the corporation, alleged the making of an agreement, fully executed on a designated date, forming the basis of the fraud, but did not allege that the stockholder had no knowledge of the transaction, the court would presume that he knew of the fraudulent acts from the date of their occurrence, so that the cause of action accrued at that time, within the five-year statute of limitations (Rev. St. 1909, § 1889).

7. LIMITATION OF ACTIONS (§ 100) — FRAUD — RUNNING OF LIMITATIONS.

Where the facts on which an action by a stockholder, for the benefit of a corporation, for fraud perpetrated on the corporation are open and known, and appear on the records of the corporation, and the mortgages executed in pursuance of the transaction constituting the fraud are recorded, and no act of a concealment of the facts is shown, limitations, within the five-year statute of limitations (Rev. St. 1909, § 1889, subd. 5), begin to run from the date of the transaction.

8. LIMITATION OF ACTIONS (§ 130) — ACTION AFTER NONSUIT — STATUTES.

Rev. St. 1909, § 1900, providing that a plaintiff may have one year additional time after a nonsuit has been suffered in which to bring another suit, does not apply where there was a final judgment on a demurrer to the merits.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by James B. Johnson against the United Railways Company of St. Louis and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a bill in equity instituted by the plaintiff against the defendants in the circuit court of the city of St. Louis, as a stockholder in the Transit Company, seeking an accounting for certain profits, alleged to have been made by the defendants growing out of a tripartite agreement made and entered into by and between the St. Louis Transit Company, a street railway corporation organized under the laws of the state of Missouri, party of the first part, and the United Railway Company, a street railway corporation organized under the laws of Missouri, party of the second part, and Brown Bros. & Co. a copartnership, of New York City.

The petition is based upon the same cause of action, and the petition is substantially the same, as that involved in the case of Johnson v. United Railways Co. et al., 227 Mo. 423, 127 S. W. 63. The principal and practically the only difference existing between the petition in that case and the one filed in this case is this: In that case the suit was for a rescission of the contract, before mentioned, injunctive relief, and an accounting for the profits growing out of said contract, while the present suit is for an accounting only. (The word "profits," as used in this case, means the amount of money or property the defendants received from the Transit Company under the tripartite contract, over and above the price they paid for the same, and not the income and profits of the company derived from the traveling public.) Reference is here made to that case for a statement of the facts.

At the first trial, the circuit court, on demurrer to the third amended petition, held that it did not state facts sufficient to constitute a cause of action against the defendants, and, in addition, the plaintiff having been compelled, under section 1826, R. S. 1909, to stand on his petition, treble damages were assessed against him. From that judgment, the plaintiff appealed to this court, which was in all things affirmed in the case of Johnson v. United Railways Co. et al., supra.

Being prohibited by said section 1826 from filing another amended petition in that cause, the plaintiff, upon the affirmance of the judgment of the circuit court by this court, brought this suit in the same court.

To the first amended petition, the defendants filed a demurrer, the substance of which is that: (1) Because it does not state facts sufficient to constitute a cause of action against said defendant. (2) Because the petition shows upon its face that the matters therein set out are res adjudicata. (3) Because the petition shows on its face that the cause therein alleged is barred by the statute of limitations. (4) Because it appears from the amended petition that plaintiff's cause of action accrued more than five years prior to the institution of this suit, and that this suit was not filed within one year after plaintiff suffered a nonsuit in any suit based on the same cause of action; and the amended petition herein shows that the former suit, therein referred to, was based upon a different cause of action from that now sued on. The demurrer was sustained, and, the plaintiff declining to plead further, judgment was rendered accordingly against him, from which he duly appealed to this court.

John A. Gilliam, for appellant. Schnurmacher & Rassieur, Boyle & Priest, George L. Edwards, Walter G. Neun, George T. Priest, and T. E. Francis, for respondents.

WOODSON, J. (after stating the facts as above).

1. The first reason assigned by counsel for the appellant for a reversal of the judgment is stated in this language: "The court erred in sustaining demurrer to petition, thereby holding that this was not the same as the previous cause." I am unable to see why it must follow, as contended for by counsel, that because the court sustained the demurrer to the petition that it must also have held that "this was not the same as the previous cause."

No one can read the petitions filed in the two cases and come to any other rational conclusion but that the two causes of action stated are one and the same; the only difference being that the present suit is for an accounting only, while the former was for an injunction, rescission, and an accounting — the latter including the former, and more. Independent of this, counsel for both the appellant and the respondents concede and insist throughout the pleadings, evidence, briefs, and arguments that the two causes of actions stated in the two petitions are one and the same, bottomed upon the same facts, and stated almost in the same language in each petition. That being true, there is nothing to be done but to treat them as being one and the same.

That being true, then it logically follows that if the decision of this court, in the case upon the former appeal, which included the grounds for an accounting, was soundly rendered, then the judgment of the circuit court, sustaining the demurrers to the petition in this cause, must also be considered sound and proper. I do not refer to the question of practice regarding the right to join in the same bill a count for rescission of the contract and for an accounting for the profits growing out of said contract, for the reason that, if the petition in that case had stated a good cause of action against the defendants for the injunction prayed, the rescission sought, or the accounting asked, or all three collectively, the demurrer thereto should not have been sustained, for the reason that this court has repeatedly held that, where the petition stated in the same or different counts several grounds for a recovery, it is error for the court to sustain a general demurrer to the petition or to the evidence, when it tends to prove any one or more of said grounds. In such a case it is the duty of the court to, and it will, separate and preserve the good grounds for a recovery from the bad, and cast the latter aside as surplusage.

In the petition filed in the former suit, as in the one filed in this one, all the facts that existed in the transaction were stated, and if they had constituted grounds for an injunction, rescission, or for an accounting, the demurrer would not have been sustained; if, however, those facts did not constitute grounds for any of the objects sought by the petition, then the demurrer was properly sustained.

The petition in this case, as...