Akins v. Hicks

• Decision Date: 07 November 1904
• Parties: T. J. AKINS et al., Appellants, v. W. E. HICKS et al., Respondents
• Court: Kansas Court of Appeals

83 S.W. 75

109 Mo.App. 95

T. J. AKINS et al., Appellants, v. W. E. HICKS et al., Respondents

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Polk Circuit Court.--Hon. Argus Cox, Judge.

AFFIRMED.

Affirmed.

McLane and Rechow & Pufahl for appellants.

(1) The petition states facts sufficient to constitute a cause of action. Light Co. v. Miller, 30 N.E. 23; Railroad v. Hatton Co., Can. S. C. 716. (2) There is no misjoinder of parties plaintiff. Lilly v Tobbein, 103 Mo. 488; Newmeyer v. Railroad, 52 Mo. 83; Wagner v. Meety, 69 Mo. 150; Bobb v Bobb, 76 Mo. 422. (3) The prevention of a multiplicity of suits is a distinct ground of equitable relief. Biddle v. Ramsey, 52 Mo. 159; High on Injunction (2 Ed.), sec 700. (4) The petition must be measured by the state of affairs existing at the time of the institution of the suit. The word bonus does not imply a gift. Kennicott v. Supervisor, 16 Wall. (U. S. S. Court R.), 452; Book 21 L. C. Co. Ed., p. 322; Anderson's Law Dict., 130.

C. H. Skinker for respondents.

(1) Representations, or a parol agreement, to permanently maintain a canning factory at Humansville necessarily implied an agreement not to be performed within one year, and was, therefore, within the statute of frauds and void, and the doctrine of part performance has no application to this provision of the statute. R. S. 1899, sec. 3418; Sharp v. Rhiel, 55 Mo. 97; Briar v. Robertson, 19 Mo.App. 66; Schultz v. Tatum, 35 Mo.App. 136; Beiler v. Devoll, 40 Mo.App. 251. (2) The alleged agreement between the defendants and the subscribers to the bonus, by which each subscriber paid a specified amount, and defendants represented that they would build, operate and maintain the canning factory, if a contract at all, was a separate contract between the defendants and each subscriber to the bonus. Plaintiffs, therefore, cannot bring a joint action for a violation of said contract, or for the recovery of their several subscriptions. Davis & Rankin v. Hendrix, 59 Mo.App. 444. (3) As each subscriber paid only one specified amount there is nothing of which a court of equity can take an accounting. 3 Pom. Eq., sec. 1421 and note; Wetmore v. Crouch, 55 Mo.App. 441. (4) The only legal relation between each subscriber to the bonus and the defendants was created by the distinct, separate and voluntary act of each subscriber, acting solely for himself. (5) Plaintiffs have a complete and adequate remedy at law. Besides, they must first establish their right at law and exhaust their legal remedy. Humphreys v. Milling Co., 98 Mo. 542; Woolfolk v. Kemper, 31 Mo.App. 421; Spitz v. Kerfoot, 42 Mo.App. 77; Crim v. Walker, 79 Mo. 335; Almut v. Leper, 48 Mo. 320; Merry v. Fermon, 44 Mo. 518. (6) Each plaintiff, if entitled to recover at all, is entitled only to a money judgment for damages. Issues of fact in an action to recover money only must be tried by a jury. Briggs v. Railroad, 111 Mo. 168.

OPINION

BROADDUS, J.

Plaintiff's petition charges that the defendants were successfully operating a canning factory at Fair Play, Missouri, in October, 1898, and prior thereto; that defendant Hicks, acting for himself and the other defendants, went to Humansville, a town in the same county, and with a view of securing a bonus for the purpose of erecting, operating and maintaining a canning factory at Humansville, represented to the citizens and the plaintiffs that an institution of that kind would be a great benefit to the community and that it would be a success, as defendants had successfully operated one at Fair Play; that Hicks further represented that he would operate and maintain a canning factory at Humansville if the citizens would raise a bonus of $ 1,500; that subscription lists, in accordance with said representations, were circulated and the required amount subscribed. There were sixty subscribers, each one agreeing to pay a specified amount, and no subscriber was, in any way, obligated to pay the amount subscribed by another. It was also set out that defendants erected the canning factory, received the bonus, and after operating the factory two years proceeded to tear it down and remove it from Humansville without reimbursing these plaintiffs or the other subscribers and in violation of the representations that they would maintain said factory at Humansville. Plaintiffs asked judgment for the aggregate amount subscribed by them, and "that the amount paid by each plaintiff be refunded to him under the directions of the court." The parties to the suit differ as to whether this is an action at law or a suit in equity. The plaintiffs are proceeding upon the theory that it is a suit in equity, but in this we are of the opinion that they are mistaken. The cause of action stated grounds in damages for the violation of a contract. The allegations of the petition are that the defendant Hicks for the purpose of inducing subscriptions to a certain enterprise, viz., the erection and maintenance of a cannery at Humansville, agreed with plaintiffs to erect and maintain such cannery provided the citizens of the town would subscribe and pay them the sum of $ 1,500; that said amount was so subscribed; that the cannery was erected but that the same has not been maintained but has been torn down, the materials removed and the enterprise abandoned. For a violation of the agreement, they ask judgment for the whole amount of said subscription and that the same be apportioned among plaintiffs according to their respective rights. It is true plaintiffs ask for an accounting, but there is nothing alleged that would authorize one to be had, as the contract itself determines with exactness defendants' liability, and the amount subscribed is the measure of each of the plaintiffs' damages.

Defendants contend that it being a suit at law, there is a misjoinder of parties plaintiff. The subscriptions of plaintiffs were not joint but several, each plaintiff subscribing a...