Frumberg v. Haderlein
| Decision Date | 12 November 1912 |
| Citation | 151 S.W. 160,167 Mo.App. 717 |
| Parties | A. M. FRUMBERG, Appellant, v. JOSEPH HADERLEIN, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
AFFIRMED.
Judgment affirmed.
J. F Merryman and A. R. Russell for appellant.
Charles H. Franck was not a proper or necessary party, either plaintiff or defendant. R. S. 1909, secs. 1729, 1731, 1732 1733; State ex rel. v. Bradley, 193 Mo. 33; Graham v. Ringo, 67 Mo. 324; Hazeltine v. Messmore 184 Mo. 314; 15 Ency. Pl. & Pr. 735.
Karl M. Vetsburg and Chas. H. Franck for respondent.
The declaration of law was properly given. Under the contract sued upon, appellant and Franck are joint obligees, and both are necessary parties plaintiff. Wells v. Gaty, 9 Mo. 565; Clark v. Cable, 21 Mo. 223; Rainey v. Smizer, 28 Mo. 310; Dewey v. Carey, 60 Mo. 224; Henry v. Mt. Pleasant, 70 Mo. 500; Ryan v. Riddle, 78 Mo. 521; Slaughter v. Davenport, 151 Mo. 26; Thieman v. Goodnight, 17 Mo.App. 429; McLaran v. Wilhelm, 50 Mo.App. 658; White v. Dyer, 81 Mo.App. 643; Culver v. Smith, 82 Mo.App. 390; Daugherty v. Berges, 118 Mo.App. 557; Butler v. Boynton, 117 Mo.App. 462; Ellis v. Railroad, 130 Mo.App. 221; Walker v. Lewis, 140 Mo.App. 31; Reifschneider v. Beck, 148 Mo.App. 737; O'Rourke v. Kelley, 156 Mo.App. 95; Annable v. Land Co., 144 Mo.App. 313.
--Plaintiff, appellant here, instituted this action before a justice of the peace, against the respondent Haderlein and one Charles H. Franck, filing a statement with the justice, to recover $ 250 alleged to be due him under a contract hereafter referred to. Plaintiff dismissed as to defendant Franck before the justice and judgment was rendered against Haderlein, from which the latter appealed to the circuit court where the cause was tried before the court, a jury being waived, on an agreed statement of facts.
It appears by this statement that the basis of the action was the following writing:
"Received of Joseph Haderlein, five hundred ($ 500) dollars, retaining fee in his injunction suit against W. Schneider Wholesale Wine & Liquor Company et al. It is understood that if a perpetual injunction is procured for Mr. Haderlein, then he is to pay an additional attorneys' fee to Chas. H. Franck and A. M. Frumberg of five hundred ($ 500) dollars; and in the event the injunction is not procured, then there is to be no further attorneys' fee to said attorneys.
In duplicate.
(Signed) CHAS. H. FRANCK.
(Signed) A. M. FRUMBERG.
Dated November 18, 1909.
Accepted:
(Signed) JOS. HADERLEIN."
It was further stipulated that appellant and Charles H. Franck prepared and filed a petition for the injunction referred to in this agreement, "and prosecuted said suit until on discharge of said Frumberg without cause by defendant Haderlein from further service in said cause," and that plaintiff and Franck received $ 500 from Haderlein, the retaining fee mentioned in the agreement; that after the discharge of plaintiff in the cause, Franck and George W. Lubke, Jr., have prosecuted and are still prosecuting the suit, which suit is still pending and in which no perpetual injunction has been procured, as mentioned in the agreement. It is further stipulated that plaintiff at the times mentioned was a licensed and practicing attorney of the St. Louis bar.
No other evidence appears to have been introduced outside of this stipulation, the cause being submitted to the court upon it. Thereupon the court made this declaration of law: "It appearing that the contract of employment, for the breach of which plaintiff prosecutes this suit, was made by defendant with plaintiff and Charles H. Franck jointly, the court declares the law to be that plaintiff cannot at law prosecute a several action upon the same, and the judgment herein must therefore be in favor of defendant." Plaintiff excepted to the giving of this declaration, filed his motion for a new trial, and saving exception to that being overruled, duly perfected his appeal from the judgment rendered in favor of defendant.
The only error assigned by counsel for appellant is to the action of the court in giving the declaration of law above set out, it being urged that Franck was not a proper or necessary party either plaintiff or defendant.
While other authorities are cited in the brief of counsel for appellant, in the argument accompanying the brief the authorities relied on are 15 Ency. Plead. & Prac. 735; State ex rel. Glass v. Beasley, 57 Mo.App. 570, 574; and State ex rel. Jackson v. Bradley, 193 Mo. 33, 91 S.W. 483. The quotation from the Encyclopedia of Pleading and Practice is that the test of unity of interest intended by the statute is such joint connection with the subject-matter as would preclude a separate action. However true this proposition may be, to apply it to the case at bar, as contended for by learned counsel for appellant, is the assumption of the very point in controversy. The question here for determination is whether this contract shows such joint connection with the subject-matter as will preclude a separate action by either Mr. Frumberg or Mr. Franck. The holding of the learned trial judge, as evidenced by the declaration of law, is that it will not.
In the Bradley case, supra, it is distinctly said (45), that the employment of the two attorneys there named, one of whom had sued for compensation claimed to be due him, "although for a contingent fee was wholly independent of each other." That is not the case here. The contract is for services which were to be jointly performed by appellant and Mr. Franck; it is a joint contract for the joint services of the two in the conduct of a certain cause which the respondent here was desirous of having brought and prosecuted.
The Beasley case, supra, was an action for trespass where several persons, alleged to have been damaged in their several interests, undertook to sue jointly. The Kansas City ...
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