Dowden v. Walrus Manufacturing Company
| Decision Date | 10 June 1918 |
| Citation | 205 S.W. 258,199 Mo.App. 657 |
| Parties | M. S. DOWDEN, Respondent, v. WALRUS MANUFACTURING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Thomas B. Buckner, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
G. A Swanson for respondent.
Ellis & Yale for appellant.
This is an action by attachment, originating in a Justice's court, against defendant (a non-resident corporation), to recover a commission alleged to be due plaintiff on the sale by him of a soda fountain under an agency contract plaintiff had with defendant for the sale of its fountains in certain territory. Service was obtained by levying the writ on defendant's property. The defendant entered its appearance, and doubtless, under the statute as it now exists, the attachment was dissolved as nothing further is heard of any attachment feature.
After the case was disposed of by the justice, it was appealed to the circuit court; and while the case was pending there, the parties, by written stipulation, waived a jury.
At the November term, 1915, plaintiff filed a petition for an order on defendant to produce the duplicate original contract between plaintiff and defendant (plaintiff's copy having disappeared after being filed with the justice), and to also produce defendant's books of account showing the exact amount realized by defendant from the disposition of said fountain. This petition was heard and sustained at said term. The duplicate original contract was furnished, but the books of account were not produced. On the contrary, the defendant at said term filed a motion to set aside and vacate said order, but this was overruled.
At the September term, 1916, the court, on plaintiff's motion for judgment by default against defendant because of its failure to comply with the order to produce, and after a hearing thereof, ordered that the motion for judgment by default be passed for the time being as the order to produce had failed to fix the time and place thereof; and thereupon the court ordered the defendant within ten days from that date to "produce at the office of its counsel, Ellis & Yale, 314 Dwight Building, Kansas City, Missouri, for inspection and copy by plaintiff the book or books of the defendant showing, so far as the same do show, the full account in respect to a certain soda fountain claimed herein to have been sold to Trent-Palmer Drug Company, Talequah, Oklahoma, on or about March 13, 1906, and showing the ultimate disposition of said soda fountain and the account of the sale and disposition of the same and the amount this defendant ultimately realized therefrom." It was further ordered that if the parties were able to agree as to what defendant's books of account showed in respect to said property, its disposition and proceeds realized therefrom, the books need not be produced, otherwise defendant was ordered to produce them at the time and place aforesaid and notify plaintiff's counsel that the same were open to their inspection.
Thereafter, and at said term, defendant filed a motion to vacate said order, but, upon a due hearing thereof, it was overruled.
At the September term, 1917, a year later, the trial was entered into before the court sitting as a jury. In the progress of the trial, plaintiff introduced his evidence including the contract and his sale thereunder of the soda fountain in question at the price of $ 1250 and perhaps other evidence in relation to his cause of action. He then sought to prove what the defendant had received for it but as this evidence was hearsay, the defendant objected and was sustained. Not being able to show this, plaintiff introduced the orders to produce heretofore mentioned, and, upon a showing that they had not been complied with as to defendant's books of account, thereupon moved the court "for judgment and its counsel from any further participation or hearing in this case." The court ruled thereon as follows: "The motion for judgment for the amount sued for will be allowed." To this the defendant objected and excepted. Thereupon the court entered a judgment reciting that "Court finds that defendant is indebted to plaintiff in the sum of" $ 478.54, and adjudging that plaintiff have and recover that sum of defendant and the sureties on its appeal bond, etc. The defendant duly appealed.
The first contention made by appellant is that the suit is, in reality, a proceeding in equity for an accounting, and that, therefore, the justice had no jurisdiction to entertain it and consequently the circuit court on appeal acquired none. If the premise is true, undoubtedly the conclusion is correct. We are, however, unable to see wherein this can be regarded as a suit in equity. The contract allowed plaintiff twenty-five per cent of all sales made at defendant's list price to be paid by defendant "when payments are received." On all sales for cash plaintiff was to receive a further commission of five per cent. If he sold a fountain for less than list price the deficiency was charged to him; but if he sold one for more than the list price he was to get a further commission of ninety per cent of the excess "as collections were made." Plaintiff alleged in his statement or petition that on March 13, 1906, he sold to the Trent-Palmer Drug Company of Tahlequah, Oklahoma, a fountain for $ 1250 the list price of which was $ 785, and that, as the sale exceeded the list price by $ 465, plaintiff under his contract, was entitled to receive ninety per cent of said last-named amount, or $ 418.50; that on or about June 1, said Drug Company went out of business leaving a balance due on said fountain of $ 645; that defendant took said fountain under its mortgage "in lieu of payment of the balance due on the purchase price of same" and, thereafter, on or about the 15th of July, sold said fountain for $ 700, but has refused to pay plaintiff his commission, to-wit, $ 418.50, for which, with interest, judgment was asked.
As the suit originated in a justice's court, no written answer was required and none was filed, but in the absence of any disclosure as to what the defense would be, we must regard the case as containing an answer in the shape of a general denial.
If the original purchaser had paid the remainder due on the fountain, then, upon such payment, plaintiff would have been entitled to his commission; and upon the failure of the purchaser to pay the remainder of the purchase price, if the defendant had sold said fountain in foreclosure of its mortgage and received the money therefrom, plaintiff would be entitled to his commission on, at least, the net amount received at such foreclosure sale. Now, if, in lieu of payment of said balance, the defendant agreed to take the fountain and did take it under that agreement, thus obviating foreclosure, this was an acceptance of the fountain at that price in place of the cash, to-wit, $ 645, and plaintiff's commission would be legally due. His commission on the excess above the list price was due when such excess was received either through payment by the original purchaser or through foreclosure, and if defendant agreed to accept the fountain in lieu of the $ 645 debt, then it would seem the agent was entitled to his commission thereon, no matter what the company may have chosen to do with the fountain after that. The fact that it afterward resold it to the successors of the original purchaser for $ 700 or any other amount would not be a necessary element in plaintiff's cause of action, nor would an allegation to that effect in plaintiff's petition change the suit from law to equity by making it a suit to account for the proceeds of a mortgage. The commission asked is on the amount at which the defendant agreed to take the fountain in lieu of payment of the debt, to-wit, $ 645, not $ 700 or any other price defendant may have thereafter obtained for the fountain. When the defendant agreed to take the fountain in lieu of payment, thereby releasing payment or cancelling the debt, this was, so far as plaintiff was concerned, a receipt of the balance due on the fountain and his commission as above stated was legally due. The suit is to recover this commission, and, under the circumstances above disclosed, it is not seen how or why the case should be regarded as one in equity. We have not been cited to any authority so holding.
But even if the case be one at law, the next contention is that the orders on defendant to produce its books are invalid and of no effect; and furthermore that failure to comply with them does not justify the judgment that was rendered. The authority for a court of law to compel a party, at the instance of the opposite party, to produce books and papers is given by section 1944 to 1949, both inclusive, Revised Statutes 1909. Before the enactment of these statutes, the power to compel the production of books and papers was exercised by the courts of equity in proceedings under "Bills of Discovery." Since the enactment of said statute, however, bills of discovery are no longer allowed in this State, since the statute "has provided other more convenient modes by which every purpose of such bills can be attained." [Bond v. Worley, 26 Mo. 253, 255.] So that the statutory proceeding in this regard has superseded and has taken the place of the old method of procedure. While this is true, we need not go to the extent of holding that a proceeding under the statute must observe all the technical niceties of pleading and other formalities required under an equitable bill of discovery. But it would seem that, even in a proceeding under the statute to compel the production of books and papers by the opposite party, certain essential prerequisites ought to be...
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