Doerr-Engel Oil & Supply Co. v. Tide Water Oil Co.

• Decision Date: 17 August 1938
• Docket Number: 34899
• Citation: 119 S.W.2d 402,342 Mo. 1141
• Parties: Doerr-Engel Oil & Supply Company, a Corporation, and Sid's Petroleum Corporation, a Corporation, Appellants, v. Tide Water Oil Company, a Corporation, Thomas L. Anderson, Trustee, A. L. Locatell, Trustee, and Walter L. Roos, Trustee
• Court: Missouri Supreme Court

119 S.W.2d 402

342 Mo. 1141

Doerr-Engel Oil & Supply Company, a Corporation, and Sid's Petroleum Corporation, a Corporation, Appellants, v. Tide Water Oil Company, a Corporation, Thomas L. Anderson, Trustee, A. L. Locatell, Trustee, and Walter L. Roos, Trustee

No. 34899

Supreme Court of Missouri

August 17, 1938

Appeal from Circuit Court of City of St. Louis; Hon. Frank C O'Malley, Judge.

Affirmed.

Jeffries Simpson & Plummer for appellants.

(1) There is no defect of parties defendant. (a) Only those who are improperly joined as defendants can demur by reason of such misjoinder. Alnutt v. Leper, 48 Mo. 322; Boggess v. Boggess, 127 Mo. 324. (b) The individual defendants, being trustees under deeds of trust sought to be canceled, were proper parties defendant. Picot v Bates, 39 Mo. 292; Perkins v. Baer, 95 Mo.App. 76; Akins v. Hicks, 109 Mo.App. 95; Sec. 701, R. S. 1929. (2) There is no defect of parties plaintiff. (a) The plaintiffs' interests in the subject matter are so interwoven that complete relief could not be granted without the presence of both plaintiffs as parties to the suit. Newmeyer v. Railroad Co., 52 Mo. 81; Shelton v. Harrison, 182 Mo.App. 413; Breimeyer v. Star Bottling Co., 136 Mo.App. 84; Fitch v. Creighton, 24 How. 159, 16 L.Ed. 596; Anderson v. Piercy, 20 W.Va. 282; Warthen v. Brantley, 5 Ga. 571. (3) There is no misjoinder of causes of action. (a) The subject matter of the suit is a tripartite arrangement between the plaintiff, Doerr-Engel Oil & Supply Company, and the plaintiff, Sid's Petroleum Corporation, and the defendant, Tide Water Oil Company. (b) The defendant, Tide Water Oil Company, having caused a joint arrangement, cannot object to the assertion of the plaintiffs' claims in a single action. Bromfield v. Trinidad Natl. Inv. Co., 36 F.2d 646, 71 A. L. R. 545. (c) The prayer for relief does not determine the question of multifariousness. McGlothlin v. Hemery, 44 Mo. 356; Davenport v. Murray, 68 Mo. 199. (d) All the rights involved arise out of and depend upon the tripartite arrangement. Bray v. Thatcher, 28 Mo. 129; Tucker v. Tucker, 29 Mo. 354; Mayberry v. McClurg, 51 Mo. 256; Donovan v. Dunning, 69 Mo. 436; Hanson v. Neal, 215 Mo. 279; Von Auw v. Chicago Toy Co., 69 F. 450; 21 C. J., sec. 438, pp. 419, 420. (4) The petition states a cause of action against all the defendants. (a) The prevention of a cloud on plaintiffs' title to realty which would arise through foreclosure sales under the deeds of trust presents a case for equitable relief. Murphy v. Simpson, 42 Mo.App. 657; Brooks v. Owen, 112 Mo. 264. (b) The nonresidence of the defendant, Tide Water Oil Company, presents a case for equitable relief allowing plaintiffs to offset their unliquidated claims against the notes and deeds of trust held by the defendant, Tide Water Oil Company. Barnes v. McMullins, 78 Mo. 271; Strong v. Gordon, 203 Mo.App. 472; Smith, Admr., v. Perry, 197 Mo. 458; State ex rel. Motor Car Co. v. Allen, 292 Mo. 369; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U.S. 596, 38 L.Ed. 571; Clark v. L. & N. Ry. Co., 158 Miss. 287; Quick v. Lemon, 105 Ill. 587; Baker v. Hotchkiss, 97 N.Y. 409; Crandall v. Shepard, 166 Ga. 402.

Cobbs & Logan for respondents.

(1) Appellants' petition improperly joins several causes of action. The petition improperly alleges six unrelated causes of action, not one of which "affects all the parties to the litigation." Sec. 765, R. S. 1929; Doan v. Holly & Walker, 25 Mo. 359; Trefny v. Eichenseer, 262 Mo. 436, 441; Repetto v. Walton, 313 Mo. 182, 281 S.W. 411; State ex rel. Songer v. Fid. & Dep. Co., of Maryland, 53 S.W.2d 1041; Fernandez v. La Mothe, 148 Mo.App. 644, 127 S.W. 408; 1 C. J., sec. 264, p. 1101. (2) There is a misjoinder of parties plaintiff. Appellants are improperly joined as coplaintiffs in that there is no single cause of action alleged in the petition in which the appellants are commonly interested in the relief prayed. Sec. 700, R. S. 1929; Lewis v. Hargadine-McKittrick D. G. Co., 305 Mo. 396, 274 S.W. 1043; Repetto v. Walton, 313 Mo. 182, 281 S.W. 411; Bliss, Code Pleading (3 Ed.), sec. 76, p. 121. (3) There is a misjoinder of parties defendant. The petition improperly joins as defendants parties who have no interests adverse to appellants, except in the individual causes of action alleged against them. The several respondents are "not a necessary party to a complete determination or settlement of the causes" alleged against other respondents. Sec. 701, R. S. 1929; Lewis v. Hargadine-McKittrick D. G. Co., 274 S.W. 1045; (4) The petition does not allege facts sufficient to constitute a cause of action. Equity has no jurisdiction to entertain a bill to enjoin the foreclosure of a deed of trust where the basis of the relief prayed is the allegation that the debt secured thereby is offset by unliquidated and speculative demands alleged to exist between the owner of the note and the maker of the note and deed of trust. Gregg v. Hight, 6 Mo.App. 579. There are no traversable allegations in the petition to the effect that appellants' remedy at law is inadequate. (a) The allegation that Tidewater Oil Company is a corporation organized under the laws of the State of Oklahoma and authorized as such to transact business in Missouri, is not without more, a sufficient allegation of a special equity justifying the allowance in equty of the alleged set-off. State ex rel. Kenemore v. Wood, 155 Mo. 447; Plattner Co. v. Bradley, Alderson & Co., 90 P. 90; Bates v. Reitz, 163 S.W. 451; Lyric Piano Co. v. Purvis, 241 S.W. 70; Morgan v. Baxter, 38 S.E. 412; 57 C. J., sec. 87, p. 440. (b) Appellants are not entitled to the set-off claimed for the further reason that there is no mutuality between the parties plaintiff and the parties defendant. England v. Barnes, 70 S.W.2d 72.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

This is a suit brought by plaintiffs to cancel certain notes and to enjoin defendants from foreclosing deeds of trust and a chattel mortgage which were given to secure the notes. Plaintiffs in their petition also asked damages for breach of contract. Defendants filed demurrers to the petition which were sustained. Plaintiffs declined to plead further and judgment was entered, whereupon plaintiffs appealed.

For an understanding of the issues in this case it will be necessary to describe the parties to the suit. From the petition we learn the following: Doerr-Engel Oil & Supply Company and Sid's Petroleum Corporation are Missouri Corporations. They are engaged in the retail business of selling gasoline oil, grease and other auto supplies at various service stations in the city of St. Louis and St. Louis County. The defendant, Tide Water Oil Company, is a corporation organized under the laws of the state of Oklahoma. It is engaged in the wholesale business of selling gasoline, oil and grease in wholesale lots to service station operators. Thomas L. Anderson, A. L. Locatell and Walter L. Roos were named as trustees in the deeds of trust involved in the suit. The corporations will hereinafter be referred to in an abbreviated form.

The Doerr-Engel Company contracted with the Tide Water Company to handle its products at service stations operated by Doerr-Engel in St. Louis and St. Louis County. Doerr-Engel was to have the exclusive right to sell the Tide Water products in that territory. Subsequently, plaintiff, the Sid's Company, entered into a contract with plaintiff, Doerr-Engel Company, to sell Tide Water products. The Tide Water Company approved this agreement and it was provided that the Sid's Company was to obtain its products through the Doerr-Engel Company. In the course of these negotiations, on March 2, 1931, plaintiff, Doerr-Engel Company, executed a promissory note in the sum of $ 15,000, payable on demand to the order of the Tide Water Company. This note was secured by a deed of trust on property belonging to Doerr-Engel. Defendant, A. L. Locatell, was named as trustee in this deed of trust. On August 5, 1932, plaintiff, Doerr-Engel, executed a note in the sum of $ 14,600, payable on demand to the order of the Tide Water corporation. This note was also secured by a deed of trust. Defendant, W. L. Roos, was named as trustee in this deed of trust. On August 5, 1932, the Doerr-Engel Company executed a chattel mortgage on its personal property to secure the note of $ 15,000, dated March 2, 1931, which was mentioned above.

The Sid's Company, on March 31, 1932, executed a note in the sum of $ 5000, and also a deed of trust covering its property to secure the note. This note was made payable to Doerr-Engel, and Arthur E. Simpson was named as trustee. Simpson resigned and the defendant, Thomas L. Anderson, was named as his successor. It is alleged in the petition that the note was endorsed by the plaintiff, Doerr-Engel, and delivered to the defendant, Tide Water Company, and that this defendant now claimed to be the holder of said note. The Sid's Company, on August 5, 1932, executed a note in the sum of $ 10,000, payable to Doerr-Engel, which note was likewise secured by a deed of trust on the property of Sid's Company. Defendant, W. L. Roos, was named as trustee. This note was also endorsed and delivered to Tide Water in the same manner as the note of $ 5000 above mentioned. It is alleged that the trustees were advertising the property for sale under the terms of the deeds of trust.

The Doerr-Engel Company and the Sid's Corporation joined in a petition against all of the defendants, that is, the Tide Water Company and the three trustees named, to enjoin the sale. The plaintiffs alleged that the defendant, Tide Water had received large sums of money from them, to-wit, the sum of $ 13,398.03, for which plaintiffs had not been given...