Ebeling v. Fred J. Swaine Mfg. Co.

• Decision Date: 08 March 1948
• Docket Number: 40446
• Parties: Joseph M. Ebeling, Jr., v. Fred J. Swaine Manufacturing Company, a Corporation, Appellant
• Court: Missouri Supreme Court

209 S.W.2d 892

357 Mo. 549

Joseph M. Ebeling, Jr., v. Fred J. Swaine Manufacturing Company, a Corporation, Appellant

No. 40446

Supreme Court of Missouri

March 8, 1948

Motion for Rehearing or to Tranfer to Banc Overruled April 12, 1948.

Appeal from Circuit Court of City of St. Louis; Hon. Eugene J Sartorious, Judge.

Affirmed.

Joseph N. Hassett and Roy McKittrick for appellant.

(1) Under our jurisdictional system the distinction between legal and equitable remedies is preserved by the courts. Whether a cause of action is an action at law or a suit in equity must depend upon the facts alleged in the petition. The facts alleged in respondent's petition affirmatively show that the respondent had a plain, adequate and complete remedy at law and the trial court did not acquire jurisdiction of the subject matter. State v. Evans, 176 Mo. 310, 75 S.W 914; Benton County v. Morgan, 163 Mo. 661, 64 S.W 119; Palmer v. Marshall, 24 S.W.2d 229; Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631; Sec. 4, Laws 1943, p. 357; Sec. 847, R.S. 1939. (2) The absence in respondent's petition of any allegation of facts affirmatively showing that respondent did not have an adequate and complete remedy at law is jurisdictional and may be raised at any time or at any stage of the proceedings; or this court of its own motion may raise the objection. Benton County v. Morgan, supra; United Cemeteries Co. v. Strother, 342 Mo. 1155, 119 S.W.2d 762. (3) The jurisdiction of the trial court must be determined from the facts stated in respondent's petition, and consent of the parties cannot transfer an action at law into an equitable action for accounting. Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Ebbs v. Neff, 325 Mo. 1182, 30 S.W.2d 616; State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52. (4) The respondent's petition upon its face shows no facts were alleged which conferred upon the trial court equitable jurisdiction over the subject matter and the judgment rendered against the appellant is void. Dahlberg v. Fisse, supra. (5) The allegations in respondent's petition show that the respondent was merely an employee or an agent of the appellant, which were not sufficient to confer equitable jurisdiction upon the court. American Button Co. v. Weishaar, 170 S.W.2d 147; Robert v. Davis, 235 Mo.App. 974, 142 S.W.2d 1111; State ex rel. Cockrum v. Southern, 229 Mo.App. 749, 83 S.W.2d 162. (6) The allegations in respondent's petition of the existence of an account, the need for discovery and for an accounting were not sufficient grounds to confer upon the trial court power to grant equitable relief. Bennett v. Crane, 220 Mo.App. 607, 289 S.W. 26; Dahlberg v. Fisse, supra; American Button Co. v. Weishaar, supra; Robert v. Davis, supra; Palmer v. Marshall, supra. (7) A prayer for equitable relief without any allegation supporting such a prayer is insufficient to invoke the jurisdiction of a court of equity. Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81. (8) No facts are alleged in respondent's petition which tend to show a fiduciary or trust relation existed between the respondent and the appellant nor any other ground authorizing an accounting in equity. Therefore the trial court did not acquire jurisdiction to order an accounting and enter a judgment for the respondent. Dahlberg v. Fisse, supra; State v. Southern, supra; American Button Co. v. Weishaar, supra. (9) Respondent's petition clearly shows that respondent is seeking to recover money for services performed in obtaining orders for the appellant from the Emerson Electric Company, which states a cause of action in assumpsit or debt, and respondent's remedy is on the law side of our courts to be tried by jury or to be tried by referee or by a court without a jury under certain circumstances. Sandwich Mfg. Co. v. Bogie, 317 Mo. 972, 298 S.W. 56. (10) The allegation in respondent's petition that the appellant has possession of the records pertaining to the transactions between the Emerson Electric Company and the appellant was not sufficient to invoke equitable jurisdiction, because the respondent had the right in an action at law to inspect appellant's records by virtue of the statutes. Bennett v. Crane, supra; Secs. 85, 86, Laws 1943, p. 379; Sec. 1142, R.S. 1939. (11) The decree entered by the trial court is void for the reason that in respondent's petition no facts are stated which conferred equitable jurisdiction upon the court; and any amendment of the petition would be stating a new cause of action. The cause should therefore be reversed. Charles v. White, 214 Mo. 187, 112 S.W. 545; State ex rel. Minnesota Mut. Life Ins. Co. v. Denton, 229 Mo. 187, 129 S.W. 709; Burnham & Co. v. Tillery & Co., 85 Mo.App. 453. (12) The appellant alleged in paragraph 7 of his second amended answer that the purported contract the respondent made with the appellant was in violation of Executive Order Number 9001 and was therefore void. This constituted a valid defense and the court erred in striking out said paragraph of appellant's second amended answer. Downing v. Ringer, 7 Mo. 585; Howell v. Connecticut Fire Ins. Co., 215 Mo.App. 386, 257 S.W. 178, reversed on another point, 306 Mo. 537, 268 S.W. 87; Miller v. Bowen Coal Mining Co., 40 S.W.2d 485; Rainer v. Western Union Telegraph Co., 91 S.W.2d 202.

David A. McMullan and Michael J. Ebeling for respondent; Doris J. Banta for counsel.

(1) The petition stated a cause of action, was properly filed, and therefore the trial court acquired jurisdiction of the subject matter. Constitution of 1875, Art. 6, Secs. 1 and 22, New Constitution, Art. 5, Sec. 14; Civil Code of Missouri, Secs. 2, 4 and 35; Laws of 1849, p. 73; Sec. 847, R.S. 1939; Koplar v. Rosset, 196 S.W.2d 800; State ex rel. v. Landwehr, 332 Mo. 622, 60 S.W.2d 4; Ex parte Clark, 208 Mo. 121, 106 S.W. 990; Chicago, B. & Q. Ry. Co. v. Gildersleve, 219 Mo. 170, 118 S.W. 86; State v. Evans, 176 Mo. 310, 75 S.W. 914; Ray v. Bayer Steam Soot Blower Co., 282 S.W. 176. (2) Any issue as to method of procedure and trial was waived by appellant in joining issue, submitting the cause to the court, and proceeding through the trial to final judgment without objection. Sec. 847, R.S. 1939; Civil Code of Missouri, Secs. 2 and 98; Kessner v. Phillips, 189 Mo. 515, 88 S.W. 66; Oetting v. Green, 350 Mo. 457, 166 S.W.2d 548; Hallauer v. Lackey, 353 Mo. 1244, 188 S.W.2d 30; Dreckshage v. Dreckshage, 352 Mo. 78, 176 S.W.2d 7; Tidwell v. Waldrup, 347 Mo. 1028, 151 S.W.2d 1092; Cronacher v. Runge, 98 S.W.2d 603; Bratschi v. Loesch, 51 S.W.2d 69, 330 Mo. 697; Whetstone v. Shaw, 70 Mo. 575; Crocker v. Barteau, 212 Mo. 359, 110 S.W. 1062; Missouri Pac. Ry. Co. v. Continental Natl. Bank, 212 Mo. 505, 111 S.W. 574; Platte Valley Bank v. Farmers & Traders Bank, 223 Mo.App. 500, 14 S.W.2d 12; Rees v. Carpenter, 161 S.W.2d 31; Hoover, Owens & Rentselder Co. v. John Featherstone's Sons, 111 F. 81. (3) The court entered judgment within the issues as presented by the pleadings and the evidence and, therefore, did not exceed its power. Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Sandwich Mfg. Co. v. Bogie, 317 Mo. 972, 298 S.W. 56; Menke v. Rovin, 352 Mo. 826, 180 S.W.2d 24; Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381; Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052; State ex rel. v. Evans, 173 Mo. 310, 75 S.W. 914; Price v. Davis, 187 Mo.App. 1, 173 S.W. 64. (4) The issues were submitted and determined without any request for findings of fact and the judgment will therefore be sustained unless clearly erroneous. Civil Code of Missouri, Secs. 123, 140, 114 (d); In re Jamison's Estate, 202 S.W.2d 879; Bohata v. Illinois Bankers Life, 195 S.W.2d 888; Eveloff v. Cram, 236 Mo.App. 1013, 161 S.W.2d 36. (5) The court properly struck paragraph No. 7 of the second amended answer. State ex rel. American Surety Co. v. Haid, 325 Mo. 949, 30 S.W.2d 100; Bradford v. Durkee Marine Products Corp., 40 N.Y.S. (2d) 448, 147 A.L.R. 1279; Coyne v. Superior Incinerator Co., 80 F.2d 844; Singer v. Bruner-Ritter, Inc., 42 N.Y.S. (2d) 881.

OPINION

Ellison, J.

This is an appeal from the circuit court of the City of St. Louis in a suit for commissions and an accounting, wherein the plaintiff-respondent Ebeling recovered a judgment against the defendant-appellant Fred J. Swaine Manufacturing Company for $ 27,815.37, principal and interest. Appellant's principal contentions are: (1) that the trial court had no jurisdiction of the subject matter of the cause of action, because the suit was brought in equity whereas it should have been at law; (2) and that the contract for the commissions was void under certain Government regulations as alleged in paragraph 7 of appellant's second amended answer, which the trial court erroneously struck out on respondent's motion.

The facts in brief are as follows. The transcript on appeal calls respondent Ebeling's petition a "Petition in Equity", the cause was tried to the court without a jury with the acquiescence of the appellant; and the final decision of the court "ordered, adjudged and decreed." Appellant's complaint as to the form of action is made for the first time on this appeal. The petition was filed in May, 1944. Our new Civil Code went in to effect January 1, 1945. Laws Mo., 1943, p. 357, Sec. 3. That section of the code provides it shall govern all proceedings brought after that date, and also further proceedings in actions then pending, except insofar as the trial court shall deem its application in a particular case unfeasable and unjust.

The petition alleged, and respondent's evidence tended to prove that he entered into an oral agreement with the appellant in 1942 whereby, for a 5% commission on gross returns, he was to procure for appellant subcontracts for it from the Emerson Electric Company, on bids as the...