Campbell v. Webb

• Decision Date: 11 May 1953
• Docket Number: No. 1,No. 42904,42904,1
• Citation: 363 Mo. 1192,258 S.W.2d 595
• Parties: CAMPBELL et al. v. WEBB
• Court: Missouri Supreme Court

Page 595

258 S.W.2d 595

363 Mo. 1192

CAMPBELL et al. v. WEBB.

No. 42904.

Supreme Court of Missouri, Division No. 1.

May 11, 1953.

Motions for Rehearing or to Modify Opinion or to Transfer to

Court en Banc Denied June 8, 1953.

David H. Bresler, Henry Riederer, Harry A. Hall, Kansas City, for appellant.

Rufus Burrus, Independence, Donald W. Johnson, Charles V. Garnett, Kansas City, for respondents.

COIL, Commissioner.

This is the second appeal. Campbell v. Webb, 356 Mo. 466, 202 S.W.2d 35, should be read in connection with this opinion.

On November 12, 1941, twelve named plaintiffs (whose names still appear as plaintiffs in the above caption) instituted an action for damages against Lewis Webb for an alleged breach of a contract relating to the handling and sale of what is hereinafter referred to as the Smith farm. This contract was executed by Webb as second party and by plaintiffs and fifteen others (including plaintiffs and present defendant-appellant, Lula Webb) as first parties, who were alleged to be heirs of one Frank Harra who had died single and intestate owning the Smith farm. By the terms of the contract, the first parties conveyed their interests in the Smith farm to Webb on the condition that if it was sold within five years the proceeds of sale less a maximum sum of $25,600 (the amount of a then-existing encumbrance) would be paid to first parties, who were all but four of the heirs of Frank Harra, deceased.

On May 6, 1942, Lewis Webb died, and the action was revived against his widow, Lula Webb, as administratrix. Two of the named plaintiffs died before the first trial and their personal representatives were not substituted as parties. On December 7, 1945, a third amended petition in two counts was filed in which, so far as the caption thereof was concerned, plaintiffs remained the same; Lula Webb in her individual capacity was joined as a defendant; and in each count it was alleged in part: 'Plaintiffs herein, by leave of court first had and obtained, file this petition for and on behalf of themselves as individuals and representatives of all of the heirs of one Frank Harra, deceased, and all of whom entered into a written contract with Lewis S. Webb, * * *. That these plaintiffs fairly insure adequate representation of all of the class. That the object of the action is the adjudication of a claim which affects specific property and rights under a single contract and there is a common question of law and fact affecting the several rights of the plaintiff and those of the whole class and a common relief is sought.'

A pre-first trial order directed separate trials, count 1 to be tried at law and count 2 in equity. Count 1 was tried in April, 1946. The evidence was that the Smith farm had been sold to the United States for $62,400 and that no amount had been paid by Lewis Webb to any plaintiff, any heir, or any first party to the contract. The trial court directed a verdict for plaintiffs in the sum of $36,800 ($62,400 less $25,600), with interest thereon at 6% from January 28, 1941, and entered a judgment which permitted recovery by the surviving plaintiffs on behalf of themselves and all others who had an interest in the proceeds of the sale of the Smith farm either as heirs or under the contract.

Among other things, our opinion in Campbell v. Webb, supra, adjudiciated: (1) that Lewis Webb sold the Smith farm within the 5-year period referred to in the contract and was obligated to pay the proceeds of the sale, less $25,600, to first parties; (2) that the trial court erred in entering judgments for any others than the surviving named plaintiffs for the amounts of their respective damages. The judgment was reversed and the cause remanded for further proceedings not inconsistent with that opinion.

On January 8, 1950, a second trial was had. The evidence therein will be referred to in more detail later. Suffice now to say that the evidence was that a portion of the proceeds of the sale of the Smith farm was used by Lewis Webb to pay an encumbrance on another farm (referred to hereinafter as the home place) held by Lewis and Lula Webb by the entirety, and in the purchase of U. S. bonds in the names of Lewis Webb and Lula Webb.

The trial court made findings of fact and declarations of law, the effect of which were included in a judgment and decree which adjudged that the ten surviving named plaintiffs, or their duly substituted personal representatives, recover on count 1 from Lula Webb as administratrix in amounts representing their respective interests in the sale proceeds; that count 2 be sustained as a class action on behalf of plaintiffs and all other heirs of Frank Harra; and that the representative plaintiffs recover from Lula Webb as an inlividual $34,500 (the difference between $62,400 and $25,600 less the interest of Lula Webb as a first party to the contract), with interest from January 28, 1941, the total recovery to be apportioned among the members of the class according to their respective interests. Plaintiffs were given an equitable lien upon certain U. S. bonds and upon the home place as security for their respective judgments.

The first question is whether count 2 is a proper class action wherein the named plaintiffs and duly substituted administrators can recover on behalf of themselves and all other Harra heirs.

It will be recalled that count 2 was an action against Lula Webb, both as administratrix of Lewis Webb's estate and as an individual. We have noted the allegations of both counts as to a class action. It is important now to note the averments of count 2, some contained in and some not contained in count 1. Count 2 averred, in substance, that Frank Harra died single and intestate owning the Smith farm; that upon his death the farm vested in parties named therein (their particular interests were alleged); that when Harra died, the farm was subject to a mortgage securing a $25,600 note; that named plaintiffs and other heirs conveyed their respective interests to Webb in trust, upon the condition that, if the farm was sold within five years, Webb would convey to the purchaser and pay the sale proceeds, less $25,600, to the heirs; that Webb sold the farm within five years for $62,400 but failed to pay to the heirs any of the proceeds; that the proceeds had reached the possession of Lula Webb; that parts of the proceeds were used to satisfy the obligation of a deed of trust on the home place and to buy U. S. bonds in the names of Lewis Webb and Lula Webb; that the home place and bonds, since the death of Lewis Webb, had become the sole property of Lula Webb. Plaintiffs prayed that an accounting be made by Lula Webb, both as administratrix and as an individual, as to the $62,400, that a money judgment be entered against her as administrix and individually for the amount found to be due, and that an equitable lien be impressed on the home place and the bonds.

On the prior appeal we held that count 1 (against the administratrix only) could not be maintained as a class action. This, because on December 7, 1945 (the time when it was first sought to convert the original suit into a class action), the claims of all heirs and parties to the contract who had not been named as plaintiffs in the original petition were barred by virtue of the one-year statute of limitations. Section 464.020 RSMo 1949 V.A.M.S. We declined to determine whether otherwise a class action could have been properly maintained. The holding in our prior opinion that the claims of others then named surviving plaintiffs were barred, effectively barred the right of plaintiffs to maintain a class action on count 2 in so far as that count sought recovery against the administratrix of the Webb estate. This because, if the claims of all others than the named surviving plaintiffs were barred as against the estate under count 1, they were likewise barred as against the estate under count 2, even though count 2 was in equity. Statutes of limitations apply alike to legal and equitable actions. Ludwig v. Scott, Mo.Sup., 65 S.W.2d 1034, 1035[1-3]; Simmons v. Friday, 359 Mo. 812, 826, 224 S.W.2d 90, 99[22, 23].

But, as noted, judgment was entered on count 2 against Lula Webb individually and not as administratrix. So, the question remains as to whether an equitable class action against Lula Webb as an individual could be properly maintained by the named surviving plaintiffs and their properly substituted personal representatives, on behalf of themselves and all of the other Harra heirs.

Class actions are provided for by Section 507.070 RSMo 1949, V.A.M.S., as supplemented by Supreme Court Rule 3.07. Three types of class actions are described. Among the conditions precedent to the maintenance of any type of class action are these: that the persons constituting a class are very numerous or that it is impracticable to bring them all before the court; that the persons bringing the action shall fairly insure the adequate representation of all on behalf of whom they sue; and that facts showing such adequate and fair representation must be alleged and proved.

(The contract provides that the proceeds of the sale of the Smith farm shall be paid to the 'first parties,' and not that the first parties shall be paid amounts according to their respective interests as heirs of Frank Harra. Our prior opinion held that the interests were several. And, as instant appellants apparently agree that their claims may be determined by their respective interests in the Smith farm as Harra's heirs, we shall assume without deciding that the class with which we are now concerned are the Harra heirs--and not the class composed of the 'first parties.')

When the third amended petition was filed (more than four years after the original action was filed by 12 plaintiffs), an attempt was made to convert the case into a class action. At that time there were, according to the petition, a total of 20 persons, including plaintiffs (all...