E. B. Eames & Co. v. Mayo

• Decision Date: 11 June 1919
• Citation: 93 Conn. 479,106 A. 825
• Court: Connecticut Supreme Court
• Parties: E. B. EAMES & CO. v. MAYO et al.

106 A. 825

93 Conn. 479

E. B. EAMES & CO. v. MAYO et al.

Supreme Court of Errors of Connecticut.

June 11, 1919

Appeal from Superior Court, New Haven County; James H. Webb and John P. Kellogg, Judges.

Action by E. B. Eames & Co. against Virginius Mayo and the Mayo Radiator Company. Last-named defendant's demurrer to count of substituted complaint sustained, and from judgment for such defendant, plaintiffs appeal. Error. Reversed and remanded, with directions.

Action brought by brokers against alleged principal and agent, where the agency was disputed, to recover compensation from one or other of the defendants for procuring capital for the benefit of the defendant company, upon the demurrer of the Radiator Company to the first count of the substituted complaint. The demurrer was sustained and final judgment rendered in favor of the defendant Radiator Company, from which judgment the plaintiffs appealed. Error.

The plaintiff sued two defendants, Mayo and the Mayo Radiator Company, for services as broker.

An amended complaint was filed in two counts. One count was successfully demurred to, and the plaintiff then filed a substituted complaint. The material allegations of this substituted complaint were as follows, viz.:

" The defendant Mayo is, and was during the period referred to in this complaint, the president and treasurer of the defendant the Mayo Radiator Company.

" The plaintiffs are in business in New Haven as brokers, particularly engaged in promoting, financing, and dealing in corporate enterprises and securities.

" On or about the _____ day of December, 1915, the defendant Mayo represented to the plaintiffs that the defendant the Mayo Radiator Company desired to obtain a large amount of new working capital, and employed the plaintiff to procure said capital.

" Thereafter the defendant Mayo and the plaintiffs consulted and planned together to obtain said capital, until on or about the 1st day of May, 1916, when the defendant Mayo agreed with the plaintiffs that if the plaintiffs would procure a purchaser for the Radiator Company, its business and assets, and certain patents of which said company was licensee, but which patents the defendant Mayo claimed to own, the purchase price to be $400,000, part cash and part stock in the new corporation to be formed by the purchaser to take over said company, the proportion of cash and stock to be thereafter agreed upon between Mayo and the purchaser, that the plaintiffs should receive for their services $20,000 in cash and $20,000 par value of the capital stock of said new corporation to be formed.

" Thereafter the plaintiffs procured as a purchaser, C R. Bergman & Co., willing, ready, and able to purchase said Radiator Company and said patents upon the terms stated by Mayo.

" Thereafter Bergman & Co. and Mayo agreed that the purchase price should be $200,000 in cash and $200,000 in capital stock of a new corporation to be formed by Bergman & Co. to take over the Radiator Company, said new company to be capitalized at $1,250,000, which agreement Bergman & Co. stood ready to carry out, but were unable to because Mayo thereafter refused to carry out said agreement and sold and transferred, and caused to be sold and transferred, said patents and said Mayo Radiator Company, its business and assets, to third parties.

" During all of these dealings between Mayo and the plaintiffs, Mayo stated and represented that he was the duly authorized agent and representative of the defendant Radiator Company, with full power to act for said Radiator Company in all of said dealings.

" Said Mayo Radiator Company has always denied that said Mayo was its agent and representative in dealings with the plaintiffs, and has always refused and neglected to carry out said agreements made by Mayo.

" The plaintiffs have never received from either of said defendants any portion of the money or stock to be paid them as set forth in paragraph 4."

The second count, after incorporating all the paragraphs of the first count, added the following:

" The plaintiffs further say and allege that if the defendant Mayo did not in truth and in fact have the authority to represent, bind, and obligate the defendant Radiator Company in the dealings between said Mayo and said plaintiffs, as set forth in the first count herein, then said Mayo willfully, falsely, and carelessly, and with intent to deceive the plaintiffs, did pretend and say to the plaintiffs that he was the duly authorized agent and representative of the defendant Radiator Company, with full authority to act for said company in the dealings between him, the said Mayo, and the plaintiffs, as set forth in the first count herein, and did induce the plaintiffs, who relied upon his said false and fraudulent statements and misrepresentations, to perform the acts and render the services heretofore set forth, to the great loss and damage of the plaintiffs."

The prayer for relief inadvertently was not printed as part of the record. An examination of the official file shows that relief was demanded as follows, viz.:

" The plaintiffs claim $100,000 damages from the Mayo Radiator Company, or, if the said Virginius Mayo in fact acted without authority from said Mayo Radiator Company, then they claim said damages from said Virginius J. Mayo."

The Radiator Company demurred to the substituted complaint as a whole for misjoinder. This demurrer was overruled. The Radiator Company also demurred to the first count, in substance, for these reasons, viz.:

" (1) Because it does not appear that the defendant Mayo had any authority to make the alleged agreement, as set forth in said first count of the complaint.

" (2) Said first count of the complaint sets forth an agreement (which the plaintiffs do not allege that the defendant the Radiator Company made, agreed to, or promised to perform, but which the plaintiffs allege the other defendant, Mayo, represented or stated to the plaintiff that he was authorized by the defendant Radiator Company to make), and with no allegation that the defendant Mayo was in fact so authorized, and without such an allegation the said first count of the complaint is insufficient, and there is no cause of action set forth in the first count against the defendant Radiator Company.

" (3) The said first count is insufficient because there are no allegations that the defendant Radiator Company made the agreement set forth, or authorized the defendant Mayo to make the same in its behalf, but, on the contrary, it appears in paragraph 8 of said count that the said defendant Radiator Company has always denied that said defendant Mayo was its agent and representative in the dealings of the said Mayo with the plaintiffs, and has always refused and neglected to carry out the agreements made by said defendant Mayo."

This demurrer was sustained upon all its grounds, and thereafter final judgment on the demurrer sustained was rendered in favor of the Radiator Company. The plaintiff appealed for error of the court in sustaining the demurrer to the first count of the substituted complaint.

Wallace S. Moyle, of New Haven, for appellants.

Edmund Zacher, of New Haven, for appellee Mayo Radiator Co.

GAGER J.

Section 12 of our original Practice Act, now section 5641 of the General Statutes, provides that:

" Any person may be made a defendant who has or claims an interest in the controversy, or any part thereof, adverse to the plaintiff, or whom it is necessary, for a complete determination or settlement of any question involved therein, to make a party."

Section 3, part 1, of the original rules framed to further the remedial intent of the act, now section 120, p. 238, of the Practice Book, provides that:

" Persons may be joined as defendants against whom the right to relief is alleged to exist in the alternative, although a right to relief against one may be inconsistent with a right to relief against the other."

Form 15 of the Practice Book was furnished as a model for invoking relief under this statute in one class of cases coming within the purview of the rule. Alternative relief may be of two kinds. The more usual is the alternative relief based upon an alternative construction of the cause of action. Rule 137 Practice Book. The statute and rule under consideration in express terms make the relief alternative with respect to the defendants. The phase of alternative relief based upon an alternative construction of the cause of action and the remedial features of the Practice Act relating thereto were fully discussed in the oft-cited case of Craft Refrigerating Machine Co. v. Quinnipiac Brewing Co., 63 Conn. 551, 29 A. 76, 25 L.R.A. 856. The statute (section 5641), relating to joinder of parties defendant, has frequently been discussed by this court. We may refer to Fairfield v. Southport National Bank, 77 Conn. 423, 59 A. 513. But the specific question of the character and certainty of the allegations necessary to bring a case within the rule 120 does not seem to have been presented, nor do we recall any case where a complaint calling for relief against one or the other of two defendants in the alternative has been specifically examined by the court upon any question of pleading. The substance of the complaint, set out fully in the statement of facts, is that upon the representation of one defendant, Mayo, that he was the agent of the other, the Radiator Company, the plaintiff procured a purchaser of the company, its business and assets, upon the terms accepted by Mayo; that thereafter Mayo refused to carry out the agreement with the purchaser; that the Radiator Company denied Mayo's agency; and that the plaintiffs have received nothing for their services, though they procured a purchaser satisfactory to Mayo. The demurrer sustained...