Burroughs v. Lasswell

• Decision Date: 04 September 1937
• Docket Number: No. 5819.,5819.
• Court: Missouri Court of Appeals
• Parties: BURROUGHS v. LASSWELL et al.

108 S.W.2d 705

BURROUGHS v. LASSWELL et al.

No. 5819.

Springfield Court of Appeals. Missouri.

September 4, 1937.

Appeal from Circuit Court, Texas County; H. O. Eldridge, Special Judge.

"Not to be published in State Reports."

Action by J. N. Burroughs against S. R. Lasswell and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

M. E. Morrow and A. W. Landis, both of West Plains, and Hiett, Covert & Lay, of Houston, for appellants.

John P. Moberly, of Houston, for respondent.

ALLEN, Presiding Judge.

This action was commenced in the circuit court of Howell county, in February, 1930. The venue was changed to Ripley county, thence to Texas county, where it was first heard on defendants' demurrer to plaintiff's petition, which demurrer was sustained by the trial court, and from which plaintiff appealed to this court. This court reached the conclusion that it was without jurisdiction because of the amount involved and transferred the case to the Supreme Court. The Supreme Court, 336 Mo. 463, 79 S.W.(2d) 107, retransferred the case to this court, holding the jurisdiction here. This court then reversed said judgment and remanded the cause for hearing on its merits. 86 S.W.(2d) 962.

The petition in this cause is identically the same as the amended petition upon which the previous trial was had, and is set out in full, in 86 S.W.(2d) 962. The defendants filed a joint answer to plaintiff's petition, to which answer the plaintiff filed a reply. Trial was had before the court and judgment was rendered for plaintiff, in the sum of $794.84. Defendants filed motion for new trial, which was overruled, and defendants appealed. The cause is now being reconsidered, on motion for rehearing.

Plaintiff's petition, in substance, states that he and defendant J. I. Lasswell were residents of Howell county, where this action was brought, and defendant S. R. Lasswell was served personally with process in said county and state and also appeared in answer herein.

That on the ____ day of ____, 1927, he and defendant S. R. Lasswell were, as copartners, owners of an oil and gas lease and an oil well on lots 11, 12, 13, 14, and 15 of block 4, Illinois addition to the town of Morris, Okl., and also an oil and gas lease and an oil well on the south half of the northwest quarter of section 18, township 13, range 14 east, of Okmulgee county, Okl. That, in pursuance of their agreements made prior to the date aforesaid, plaintiff and S. R. Lasswell acquired a lease on said lands and lots and by their joint means, labor and efforts, developed an oil well on each of said tracts, and put same in a state of production, and, so long as the same were producing oil, the output was sold to the Prairie Oil & Gas Company, a Kansas corporation, but authorized to do business in Oklahoma.

That prior to the filing of this action the said oil wells had ceased to produce oil, and there was located on the lands and lots mentioned certain personal property consisting of casing, tubing, jacks, pump, engines, oil tanks, water tanks, and other machinery, appliances, and equipment used on said leases, all of which was the property of the copartnership; that the defendants conspired and connived together to cheat and defraud plaintiff and to deprive him of his interest in said property and his rights to have the same held and administered as the property of the copartnership and took charge of same and converted it to their own use; and that the property was of the value of $4,000.

That in further pursuance of the joint wrongs, frauds, and conspiracies of the defendants to cheat and defraud plaintiff out of his rights and interest in and to the partnership property and the proceeds and income therefrom, defendants executed and delivered to the Prairie Oil & Gas Company a joint division order which authorized and directed payments of all sums due on the working interest of the wells and leases to J. I. Lasswell. That, as a result of the fraudulent division order, oil to the value of $4,000 has been sold by the defendants to the Prairie Oil and Gas Company, the whole of which sum belonged to said copartnership. That defendants have collected this sum and converted it to their own use and benefit. That the defendants have transferred and disposed of all their property and have rendered themselves insolvent. That there is now a balance due from the Prairie Oil & Gas Company on oil produced from the leases of about $1,100, and the defendants have suit pending in the district court of Okmulgee county, Okl., in the name of J. I. Lasswell and against the Prairie Oil & Gas Company to compel payment to him of said sum. That plaintiff would be denied the right to litigate his claims to said fund, for the reason that S. R. Lasswell is not a party to this action and plaintiff could not require him to be made such, and plaintiff could not assert his interest in said funds without S. R. Lasswell being made a party to any proceedings involving the same. That said action in Oklahoma is being prosecuted by S. R. Lasswell, who employed counsel and had the suit filed, and defendants are acting jointly in fraudulent plans to collect said fund without giving the plaintiff a right to assert his claim thereto in the courts, and that such was the purpose of the division order being made to J. I. Lasswell, and of the suit being brought in his name. That S. R. Lasswell was personally served with summons for this action in the county in which it was originally brought, and which is the situs of his individual property, and that he has entered his appearance and filed pleas thereto, and therefore all the necessary parties to a termination of the issues involved in the suit in Oklahoma and also the partnership matters herein involved are before this court and that this court acquired jurisdiction prior to the courts of Oklahoma, because the suit was first filed in Howell county. That by reason of the insolvency of the defendants and by reason of the fact that the courts of this state acquired prior jurisdiction and by reason of lack of right to assert his equitable matters in said action at law, in the state of Oklahoma, and by reason of lack of proper parties before said court and lack of right in plaintiff to bring them before the court in Oklahoma, the plaintiff is wholly without adequate remedy at law, and would suffer irreparable injury and loss if defendants should be permitted to prosecute said action in Oklahoma, and that plaintiff is entitled to have the defendants permanently restrained and enjoined from prosecuting said action.

That by the joint frauds and wrongful conduct of defendants they have not only made away with the partnership property and assets, but have destroyed the partnership relation and business of plaintiff and defendant S. R. Lasswell and the same is in effect dissolved and at an end. That there only remains an accounting and settlement between plaintiff and S. R. Lasswell to wind up the affairs of the copartnership, for which both defendants are accountable to plaintiff for his interest therein.

Plaintiff prayed judgment against the defendants for his interest in the personal property and moneys collected from the Prairie Oil & Gas Company in the sum of $8,000; that the injunction granted against J. I. Lasswell, restraining him from prosecuting his action in Oklahoma, be made perpetual and that both the defendants be restrained and enjoined from collecting, handling, receiving, or disposing of the said sum due from the Prairie Oil & Gas Company in any manner whatever, and that the said sum be adjudged the money of the copartnership; that said fraudulent division order be canceled and defendants ordered to turn the said fund into court in satisfaction of any judgment that may be rendered for plaintiff herein.

Defendant's joint answer admitted that J. I. Lasswell, one of the defendants, was the owner in fee of the lots and parcels of land described and located in Illinois addition to the town of Morris, in Oklahoma, but denied that plaintiff had any title or interest in and to said real estate, either legal or equitable, and denied that he now has or ever owned any interest in and to any oil, gas, or mineral lease thereon, and denied that plaintiff ever had any interest in the machinery located thereon.

Defendants admitted in their answer that plaintiff did secure an oil lease in his own right and took the lease in the name of himself and defendant S. R. Lasswell, on a certain 80 acres of land in Okmulgee county, Okl., mentioned in the petition, but alleged that it was for the fraudulent purpose of claiming that the lease on the 80 acres was a consideration for his fraudulent claims afterwards and now made for his pretended interest in the oil lease on the lots in the town of Morris, Okl. Defendants alleged that the plaintiff acquired the lease on the said 80 acres in his name and that of defendant S. R. Lasswell without the payment of any price and without the outlay of any money for the procurement of the lease, and that it was procured from the owner of the 80 acres under the fraudulent misrepresentation of plaintiff that a deep Wilcox well would be drilled thereon; that thereafter plaintiff agreed with defendant S. R. Lasswell that, if Lasswell would furnish the machinery and tools, the plaintiff would furnish the necessary finance to drill ten or twelve wells, and that defendant S. R. Lasswell at all times complied with his part of the agreement and stood ready and willing to furnish machinery and tools, but plaintiff failed to carry out his part of the agreement. That, on account of plaintiff's failure to carry out his part of the agreement and on account of the misrepresentations which he had made to the owner, he hindered and delayed the operations and there was drilled only one shallow well which produced only a fraction of the expense incident to drilling and bringing in said well, and that defendant derived no profit...