Barron v. H. D. Williams Cooperage Company
| Decision Date | 12 December 1914 |
| Parties | WILLIAM N. BARRON, Respondent, v. H. D. WILLIAMS COOPERAGE COMPANY and GEORGE KINNARD, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Butler County Circuit Court.--Hon. J. P. Foard, Judge.
Decree affirmed.
Douglas W. Robert and Whaley & Ing for appellants.
(1) The decree in the case of Heike v. Williams Cooperage Co. confirmed the rights of Williams Co. to the 18-inch white oak trees on the land and the Great Western Land Co. and plaintiff herein are bound thereby (as the successors in title as well as the agents and servants of the Brooklyn Cooperage Co., are bound thereby. 2 High on Injunct., sec 1440a; In re Coggshall, 100 Mo.App. 585. (2) The plaintiff has an adequate remedy at law, hence the bill should have been dismissed. 1 High Injunct., secs. 673, 728; Powell v. Canaday, 95 Mo.App. 713; Crenshaw v Cook, 65 Mo.App. 264; 2 Beach Inj., sec. 1125. (3) The plaintiff's title to the trees being in dispute, no injunction should have been granted. Smith v Jameson, 91 Mo. 13; Powell v. Canaday, 95 Mo.App. 713; 2 Beach Injunct., secs. 998, 1125, 1139; 1 High Injunct., secs. 674, 676, 698. (4) The filing of the motions for a new trial and in arrest of judgment by all the defendants in the case of Oxley Stave Co. v. Butler County was a waiver of any defect in service or summons. Clark v. Brotherhood, 99 Mo.App. 687; Rector v. Circuit Court, 1 Mo. 607; Schell v. Leland, 45 Mo. 293; Lorithan v. Caldwell, 52 Mo. 121. (5) As the judgment in the case of Oxley Stave Co. v. Butler County was only appealed from by three of the defendants, it became final as to all others. Bank v. Umrath, 55 Mo.App 49; Holborn v. Norton, 60 Mo.App. 102; Christopher v. Kelly, 91 Mo.App. 100; Wollman v. Loewen, 108 Mo.App. 590; Potter v. Whitten, 161 Mo.App. 127; St. Louis v. Lanigan, 97 Mo. 180; Holt County v. Cannon, 114 Mo. 514; Burke v. Kansas City, 118 Mo. 323. (6) It was error to permit witness to testify "who were the sole heirs of William S. Dewey." This was a legal conclusion. Sparr v. Wellman, 11 Mo. 230; Wetherell v. Patterson, 31 Mo. 458; Kendall Shoe Co. v. Bain, 46 Mo.App. 581; Nuestead v. Mortgage Co., 49 Mo.App. 200; McCormack v. Herboth, 115 Mo.App. 202; Van Winkle v. Crowell, 146 U.S. 42; Kirkpatrick v. Clark, 132 Ill. 342, 24 N.E. 71; Montgomery v. Martin, 104 Mich. 390, 62 N.W. 578; Shifflet v. Morelle, 68 Tex. 382, 4 S.W. 843; Watrous v. Morrison, 33 Fla. 261, 14 So. 805; Brandon v. Distil. Co., 52 So. 640; Arnold v. Johnson, 128 S.W. 1186; Plaster Board Co. v. Bldg. Co., 121 N.Y.S. 238.
Arthur T. Brewster and E. R. Lentz for respondent.
(1) The decree in the case of the F. G. Oxley Stave Company v. Butler County did not have effect to destroy or in any manner affect the title of I. W. G. Weirman, or of James J. Johnson, under whom plaintiff claims in this case, because I. W. G. Weirman was not made a party to that suit and consequently whatever decree was rendered does not affect his interest; and, because the service was attempted to be had upon James J. Johnson by publication. The order of publication introduced in evidence is fatally defective, and there is no evidence in this record that the order of publication was ever published as required by law. F. G. Oxley Stave Co. et al. v. Butler County et al., 121 Mo. 642. (2) In the Oxley Stave Co. case the defendant, Butler county, was served with process, filed answer, participated in the trial and prosecuted an appeal to the Supreme Court. The decree of the circuit court was reversed as to the defendant, Butler county. When the decree was reversed as to Butler county, it necessarily operated as a reversal as to all of the defendants whose title is shown to have been founded upon conveyances from Butler county, and who made default therein. Wollmar v. Loevin, 108 Mo.App. 590; Bank v. Umrath, 55 Mo.App. 43. (3) A deed without covenants of warranty does not estop the grantors from setting up an after acquired title against his grantees. Gibson v. Chouteau, 39 Mo. 566; Wilson v. Fisher, 172 Mo. 21-3; Cadiz v. Major, 33 Cal. 288; Benneson v. Aiken, 102 Ill. 96; Thorpe v. Haines, 107 Ind. 234; Jackson v. Peike, 4 Wend. 300; Jourdian v. Fox, 90 Wis. 99. (4) Plaintiff has no adequate remedy at law and is therefore entitled to injunction relief. Turner v. Stewart, 98 Mo. 580; Sills v. Goodyear, 80 Mo.App. 132; Hobart, etc. Co. v. Stone, 135 Mo.App. 556-7; McPike v. West, 71 Mo. 199; Saving Bank v. Kercheval, 65 Mo. 682; Damschroder v. Thias, 51 Mo. 100; Eckelcamp v. Schrader, 45 Mo. 505; Hayden v. Tucker, 37 Mo. 215. (5) The proof to support any charge of fraud must be clear and convincing and such as to overcome the legal presumption of innocence and beget in the mind a belief in the truth of the charge of unfair dealing. Dodson v. Norman et al., 169 S.W. 527.
--This is an appeal by the defendants from a decree rendered on May 2, 1914, in the circuit court of Butler county whereby defendants were perpetually enjoined from cutting certain white oak timber on lands located in said county. As to defendant H. D. Williams the bill was dismissed.
It is necessary to give a brief history of the relationship of the parties and their relations with reference to the land on which the timber in dispute grows in order that appellants' theory as to the errors assigned may be made plain.
The plaintiff is a resident of Butler county, and is the general agent, manager, and attorney of the Brooklyn Cooperage Company and of the Great Western Land Company, two corporations. From the record it appears that he had a free hand in managing their properties in Missouri. The defendant cooperage company (appellant) is a corporation engaged in the manufacture of products made from white oak timber. George W. Kinnard was an agent in the employ of the H. D. Williams Cooperage Company, and H. D. Williams was an owner of considerable stock and an officer in said company.
Some years prior to the institution of this suit, there was a controversy between the Brooklyn Cooperage Company and Charles R. Heike and Arthur Donner over the right of the H. D. Williams Cooperage Company and H. D. Williams to cut the white oak timber on the land owned by the Brooklyn Cooperage Company and Heike and Donner. The Brooklyn Cooperage Company and Heike and Donner instituted a suit in the United States District Court for the eastern district of Missouri seeking to enjoin H. D. Williams and the H. D. Williams Cooperage Company from cutting the white oak timber on the land involved in the case now before us as well as that on other lands. An answer was filed by the defendants in that suit setting up certain claims and rights to the timber. While that suit was pending, a compromise was reached between the parties and a consent decree was entered by the court giving the defendants therein the right to cut all the white oak timber (on the land involved in the case before us) having a stump diameter of eighteen inches and above for a period of time ending April 13, 1915. This consent decree was entered in accordance with a certain contract of settlement between the parties referred to in the evidence as exhibits A and B, the same being set up in an answer of the Great Western Land Company and the Brooklyn Cooperage Company to a complaint seeking an injunction filed in the United States District Court for the eastern district of Missouri by the H. D. Williams Cooperage Company. After that decree was entered, the Brooklyn Cooperage Company and Heike and Donner conveyed all the interest they had in the lands to the Great Western Land Company. As stated, Barron was the agent, officer and attorney of the Brooklyn Cooperage Company and of the Great Western Land Company and was thoroughly conversant and familiar with all the dealings between the parties, and had been the attorney of said companies in their pleadings leading up to the decree, and knew of the agreed settlement, the contract, and the decree entered carrying out such compromise.
After that settlement was made and such consent decree entered, a suit was brought against the Great Western Land Company, the successor to the title of the Brooklyn Cooperage Company, and the H. D. Williams Cooperage Company and H. D. Williams by Margaret A. Weirman and Laura Weirman Burnes, and another suit was brought by Mary J. Harston against the Great Western Land Company. The plaintiffs in those two suits set up a claim to the title to the land alleged to be paramount to that of the defendants therein. Those suits were dismissed by the plaintiff therein and they executed deeds conveying their interests in the land to the plaintiff in our case, William N. Barron. It is shown that for the Weirman interest plaintiff (Barron) paid $ 3100, and for the Harston interest, $ 2500, and this money was paid out of the funds of the two corporations (the Brooklyn Cooperage Company and the Great Western Land Company) by Barron, their managing agent. He then deeded the land to the two corporations just mentioned, conveying all the title he had acquired excepting and reserving all the white oak timber on said land. One corporation paid $ 2700 for the land, the other, $ 2200, and Barron personally paid $ 400 and $ 300 respectively for the timber rights which he reserved to himself.
The plaintiff, now claiming title through the deeds conveying the land subsequent to the consent decree entered in the United States District Court, made after a compromise agreement between the parties, seeks in this action to restrain the defendants herein from interfering with the timber notwithstanding any rights they acquired under the consent decree of the United States...
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