Davis v. forrestal
| Decision Date | 12 December 1913 |
| Docket Number | 18,239 - (85) |
| Parties | W. E. DAVIS and Another v. JAMES FORRESTAL and Others |
| Court | Minnesota Supreme Court |
Motion in the district court for Wabasha county by W.H. Davis and George W. Redmon and The Massachusetts Bonding & Insurance Company, plaintiffs, for a temporary injunction to restrain James Forrestal and Nicholas Feyen, as copartners, The Title Guaranty & Surety Company, the county of Wabasha, Simon Braun, Sarah Schurhammer and Joseph Schurhammer from commencing or maintaining any action against plaintiffs upon the transactions set forth in the attached complaint, to restrain defendants Forrestal and Feyen from taking any further proceedings in an action commenced by them against plaintiffs in the district court for Ramsey county, excepting the dismissal of such action. Plaintiffs obtained an order directing defendants to show cause why the motion should not be granted and the injunction issue. The order was heard before Snow, J., who denied the motion. From the order denying the motion, plaintiffs appealed. Affirmed.
Injunction against subcontractors to avoid multiplicity of suits.
The contractors for the construction, under the drainage statutes, of a judicial county ditch and their surety who have been sued by the subcontractors for a balance due, bring this action against the subcontractors, the latter's surety, the county, and two owners of land adjacent to the ditch, who have threatened to sue plaintiffs for flooding their lands, to enjoin the subcontractors and each defendant from maintaining or bringing any action against plaintiffs on account of the ditch construction and to have the various claims of the parties determined, alleging that the failure of the subcontractors to complete their contract is alone the cause of the injury to the landowners. Held:
(1) The contractors do not show irreparable injury nor that their remedy at law is inadequate nor does the plaintiff surety show any cause of action.
(2) The sole ground for enjoining defendants from suing being to avoid a multiplicity of suits, the court may consider the number of suits which may be avoided, the statutory provisions for reducing this number, the efficiency of such provisions for giving plaintiffs adequate relief, the convenience and pecuniary loss of the parties, the apparent as well as anticipated issues between the different parties and the importance of preserving to each the right of a jury trial in determining whether jurisdiction should be entertained or refused.
(3) When the rights of plaintiffs as to the different defendants and the rights of the latter as between each other are considered, it is clear that, even though the different rights may grow out of the same act, the issues of law and fact arising therefrom as between the individual parties are not the same, and equity should not assume jurisdiction in purely legal controversies based on such varied rights.
(4) A different rule applies where a plaintiff has an equitable cause of action, for where equity jurisdiction attaches as a matter of right, the claims of all proper parties to the suit will be adjusted notwithstanding that such claims constitute actions at law triable to a jury.
(5) The court under the allegations of the complaint being justified in refusing to entertain the action at all, clearly did not abuse its discretion in denying the application for temporary injunction.
Brown & Guesmer, for appellants.
Boyesen & Flor, J. E. Cowern, Hiram D. Frankel and Michael Marx, for respondents.
Appeal by plaintiffs from an order refusing a temporary injunction. The facts in brief are these: On August 16, 1909, the county of Wabasha made a contract with plaintiffs Davis & Redmon partners, under which, for a stipulated price, the latter agreed to construct judicial ditch No. 1 in said county and the plaintiff surety company, a corporation, became the surety on the statutory bond given to the county by Davis & Redmon for the faithful performance of the contract. Davis & Redmon on March 17, 1911, sublet the construction of about one-half of the ditch to defendants Forrestal & Feyen, the defendant Title Guaranty and Surety Company becoming surety for their performance of the subcontract, and the plaintiff corporation becoming surety on a bond given by Davis & Redmon to Forrestal & Feyen to secure the payment of the moneys to be earned under the subcontract. Some time prior to the commencement of this action Forrestal & Feyen began an action in the district court of Ramsey county to recover from the plaintiffs herein the sum of $1,500 claimed to be the balance due on the ditching contract of March 17, 1911, and when the same was about to be reached for trial the defendants therein, the plaintiffs herein, brought the present action in Wabasha county making Forrestal & Feyen, their surety, the county of Wabasha, and two separate owners of land adjacent to the ditch defendants.
The complaint sets forth the above facts and also that there would have been due Davis & Redmon from defendant county about $3,200 had Forrestal & Feyen completed the subcontract, which sum the county refuses to pay solely because of the failure of the subcontractors to complete their part of the ditch. It is also alleged that defendants Braun and Schurhammer each own tracts of land adjacent to the ditch which each claims to have been flooded by reason of the improper work of the subcontractors, and that these landowners threaten to sue plaintiffs for damages. Numerous and varied allegations abound in support of the conclusion that the rights and liabilities of the plaintiffs and the different defendants grow out of and depend on the single fact of the failure of the subcontractors to construct their part of the ditch according to their contract. The usual averments of irreparable injury, inadequate remedy at law, and a multiplicity of suits are found. The contract, subcontract, and the three bonds mentioned are made part of the complaint. In the prayer for relief, the court is asked to determine the claims of the respective parties and give judgment for or against them as the facts and the law shall be found to require for a determination of the entire controversy; to issue an injunction perpetually enjoining and restraining Forrestal & Feyen from proceeding in their Ramsey county action, except by a dismissal, and perpetually enjoining each and all of the defendants from beginning or maintaining any action against plaintiffs based upon the facts stated in the complaint; and to issue a temporary injunction of the same tenor during the pendency of the action. The court on plaintiff's application ordered defendants to show cause why the temporary injunction as prayed for should not issue, and restrained Forrestal & Feyen from proceeding in the Ramsey county action until the hearing upon the order to show cause. On the hearing the order to show cause was discharged and the temporary restraining order vacated. This appeal followed.
It is plain that plaintiffs will suffer no irreparable injury from the acts of defendants, done or threatened, for which there is not an adequate remedy at law. The plaintiff surety is in no position to bring the action, for it has paid nothing on the bond and stands in no position to ask for contribution or release; it surely stands in no better position to ask equitable relief than do its principals Davis & Redmon. The latter confess that they have not fulfilled their contract with the county, hence have no cause of action against it and, what is more, their conduct towards the county with reference to this ditch is so inequitable that that alone should bar them from equitable relief. With respect to the county plaintiffs were in duty bound to see to it that the ditch was dug according to contract. The failure of a servant or subcontractor of theirs to perform is no excuse. If these have gone wrong or failed in some respect, plaintiffs should rectify the same before troubling the county with a lawsuit. The county has no contractual relation with Forrestal & Feyen. Against Forrestal & Feyen plaintiffs have an adequate remedy at law if it be true that the subcontract is unfinished. Also, if Davis & Redmon have suffered any damages by the reason of the subcontractors' default, such as expenditures for properly completing the subcontract and loss from payment of damages for delay, as stipulated in their contract with the county, proper counterclaims may be asserted in the action pending in Ramsey county or plaintiffs may bring separate action therefor. It is not alleged that either Forrestal & Feyen, or their surety company, is insolvent, or likely to be, and if, perchance, the two defendants who own lands adjacent to the ditch should sue plaintiffs on their bond to the county, no reason is apparent why plaintiffs may not by appropriate steps protect themselves against irreparable injury, if damages are awarded because of the subcontractors' breach of contract or wrongs in the construction of the ditch. The claim that a jury in one case may not find the determinative facts the same way as a jury in another case is not a ground for equitable intervention and does not come under the definition of irreparable injury or inadequate remedy at law.
It remains to be seen whether the present suit comes properly within equity cognizance because it avoids a multiplicity of suits. Efforts have been made by textwriters to classify equitable actions and in general language define each class. Pomeroy in his Equity Jurisprudence divides such actions into four classes. Plaintiffs confessedly do not bring themselves within any of these, unless it be the fourth class as defined and expounded in sections 269 and 274 of said...
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