Nokol Company of Missouri v. Becker

• Citation: 300 S.W. 1108,318 Mo. 292
• Decision Date: 02 December 1927
• Docket Number: 26733
• Parties: Nokol Company of Missouri, Appellant, v. Arthur W. J. Becker et al
• Court: United States State Supreme Court of Missouri

300 S.W. 1108

318 Mo. 292

Nokol Company of Missouri, Appellant, v. Arthur W. J. Becker et al

No. 26733

Supreme Court of Missouri

December 2, 1927

Appeal from Circuit Court of City of St. Louis; Hon. Franklin Miller, Judge.

Reversed and remanded.

Foristel Mudd, Hezel & Habenicht for appellant.

(1) The facts alleged and set out in the petition state a cause of action for the injunctive relief prayed. Osborne v. Bank 6 Law Ed. (U.S.) 228; Warren v. Coal Co., 220 Mo.App. 448; Pomeroy's Eq. Jurisprudence, sec. 1718; Page on Contracts, sec. 3378; 22 Cyc. 847 et seq.; 32 C. J. 195; Meyers v. Steel Machine Co., 57 A. 1080; Manhattan Mfg. Co. v. Merc. Co., 23 N.J.Eq. 161; Western U. Tel. Co. v. Rodgers, 11 A. 13; Albers v. San Francisco, 32 F. 503; Lowenstein v Fuldner, 21 N.Y.S. 615; Laskey Feature Play Co. v. Celebrated Players Co., 214 F. 861; Beekman v. Maisters, 80 N. E. (Mass.) 817; New York Phonograph Co. v. Jones, 123 F. 197; Singer Sewing Machine Co. v. Buttonhole Co., 22 Fed. Cas. No. 12904. (2) The fact that the defendant American Nokol Company could not be summoned and was therefore not before the court did not deprive plaintiff of the right to proceed against the other defendants and to have injunctive relief against them. Sec. 1160, R. S. 1919; Osborne v. Bank, 6 Law Ed. (U.S.) 228; New York Phonograph Co. v. Jones, 123 F. 197; Florence Sewing Machine Co. v. Grover, 110 Mass. 1; Alcazar Amusement Co. v. Amusement Co., 86 So. 209; Montgomery Enterprise Co. v. Theatre Co., 86 So. 880; Parkman v. Acadie & Tool Co., 34 Ala. 393; Beekman v. Maisters, 80 N.E. 817. (3) Plaintiff did not have an adequate remedy at law "by an action for damages as such" for the injuries done it by the defendants, as set out in the petition. Sec. 1969, R. S. 1919; Jones v. Williams, 139 Mo. 35; Warren v. Coal Co., 200 Mo.App. 442.

Fordyce, Holliday & White and Lord, Wire & Cobb for respondents.

(1) The American Nokol Company had not been served with process, and therefore the court rightly required the plaintiff to dismiss as to said defendant before proceeding to trial against the other defendants. Sec. 1406, R. S. 1919. (2) Since the American Nokol Company was no longer in the case, it was obviously impossible for the court to reform the written agreement entered into between the plaintiff and said American Nokol Company. 21 C. J. 272, 273, 276, 282; 34 Cyc. 967; Pope v. Boyle, 98 Mo. 531. (3) The contract between plaintiff and the American Nokol Company was not one on which either party could obtain specific performance, and therefore the plaintiff was not entitled to a mandatory injunction. 36 Cyc. 554; Falder v. Dreckshage, 227 S.W. 935; Mueller v. Wall, 251 S.W. 121; Pomeroy, Specific Performance of Contracts (3 Ed.) sec. 163; Lackawanna Coal Co. v. Long, 231 Mo. 605. (4) Plaintiff's petition shows on its face that plaintiff had an adequate remedy at law. Benton County v. Morgan, 163 Mo. 661; Brier v. Bank, 225 Mo. 673. (5) Plaintiff's petition nowhere alleges that plaintiff had suffered irreparable injury, and it was therefore demurrable. McKinzie v. Mathews, 59 Mo. 102; Schuster v. Myers, 148 Mo. 422; State ex rel. v. Wood, 155 Mo. 447.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Suit in equity brought by plaintiff, Nokol Company of Missouri, a corporation, against four individual defendants and two corporate defendants, the St. Louis Nokol Company and the American Nokol Company. The nature and purpose of the suit and the precise equitable relief asked are best shown in the exact language of the amended bill, or petition, which is as follows:

"Plaintiff . . . for cause of action says:

"Paragraph 1. That the plaintiff and the defendants St. Louis Nokol Company and American Nokol Company are each and all corporations duly organized and existing under the law, the two former under the law of the State of Missouri, and the latter, the American Nokol Company, under the law of the State of Illinois. That the defendant American Nokol Company, in August, 1922, was, and ever since has been, the owner of a certain patented device designed and intended for use in heating residences by the use of oil, and called and known as the 'Nokol Automatic Oil Burner,' and as such owner manufactures the said burner for general use. That being so the owner, the last said defendant, on, to-wit, August 1, 1922, entered into and duly executed a contract with the plaintiff, which said contract contains many and divers provisions and covenants to be kept and performed by the parties thereto, respectively, and was on said date duly signed and executed by both said parties, to-wit, the said defendant American Nokol Company and the plaintiff, by and through their respective proper corporate officers. That among the provisions of the said contract the said defendant owner constituted and authorized the plaintiff as sole and exclusive dealer in the said burner in certain territory, to-wit, the city and county of St. Louis and the State of Missouri, and the counties of St. Clair and Madison, in the State of Illinois, and gave to and invested the plaintiff with the sole and exclusive right to purchase, sell and install and deal in the purchase and sale and installation of said burner within the said territory for and during the period beginning with the date of said contract and ending July 1, 1927. And further the said owner, defendant American Nokol Company, in and by the terms and provisions of the said contract, agreed and obligated itself, as owner and manufacturer of said burner, to furnish the plaintiff from time to time, on plaintiff's order, such of the said burners, in number and quality, together with all necessary accessories, as the plaintiff as such dealer would need for use in its said territory in the course of the business to be built up and established by the plaintiff in said territory. Among the provisions of the said contract it was further provided that the plaintiff as such dealer shall establish and maintain offices and sales-and-show rooms in its territory, equipped with demonstrators capable of performance as in actual heating usage, and that plaintiff should use its best efforts to sell and promote the sale of said oil burner in said territory, and should maintain a stock of burners and parts thereof sufficient to meet all the demands of the trade in said territory.

"It was further provided in said contract that the plaintiff should advertise said burner in said territory in a local newspaper, and also by direct-by-mail campaign at a large cost and expense, and to engage suitable space in newspaper in his territory under the direction and approval of the owner of said burner.

"It was further provided in said contract that the plaintiff, as dealer thereunder, should invest and maintain a large working capital, sufficient, in the judgment and opinion of said owner, to insure the proper conduct of the business growing out of and contemplated by said contract, and to be built and established by the plaintiff.

"It was further provided that plaintiff, as such dealer, should operate the entire said territory either through a main office or branch offices, to be opened, maintained and established by the plaintiff in a manner satisfactory to the said defendant, American Nokol Company, as owner.

"It was further agreed in said contract that the said defendant, American Nokol Company, owner, would 'use due diligence to protect the territory' covered by the said contract.

"Plaintiff further alleges that the plaintiff and defendant having so entered into the said contract, the plaintiff, pursuant to the provisions of the said contract, and relying upon its protection, and particularly the exclusive rights, as aforesaid, did, at a great outlay of money and labor, open an establishment and office and place of business in the said territory, to-wit, in the city of St. Louis, for the conduct of the business of selling and installing the said burner, and did set up the proper equipment, show and demonstration rooms, and did employ a large number of employees as agents, servants and salesmen of the plaintiff, at large salaries, and did outlay large sums of money for advertising of the said business, and actively enter upon the said business, and did establish a large and valuable business in the sale and installation of the said burner under the said contract, wholly relying upon its protection and said exclusive rights, and did obligate itself to its customers and purchasers under contract with them to install the said burner in the respective residences of its said customers.

"Plaintiff further says that upon the making and entering into the said contract the said defendant, American Nokol Company, party thereto, did undertake to cause the said contract to be properly written, and did present to the plaintiff a written draft of the said contract, which was, as aforesaid, signed and executed by the parties thereto, but that by mutual oversight, inadvertance and mistake of both the parties to the said contract 'the city of St. Louis' was omitted from the draft of the said contract and written document, contained the same as executed.

"Wherefore, the plaintiff prays that the said contract and the written document purporting to contain the same, as aforesaid executed, be so reformed by proper decree of this court as to include within its provisions 'the city of St. Louis' as a part of the said territory, according to the real agreement of the parties.

"Paragraph 2. Plaintiff further says that, notwithstanding the premises as set forth in paragraph one hereof, on or about June 1923, the defendant, American Nokol Company, meaning and intending wrongfully to disregard, violate and breach the provisions of its said contract with the...