Gabbert v. Union Gas & Traction Co.

• Decision Date: 06 December 1909
• Parties: BENTON GABBERT, Appellant, v. UNION GAS & TRACTION COMPANY et al., Respondents
• Court: Kansas Court of Appeals

123 S.W. 1024

140 Mo.App. 6

BENTON GABBERT, Appellant, v. UNION GAS & TRACTION COMPANY et al., Respondents

Court of Appeals of Missouri, Kansas City

December 6, 1909

Appeal from the Platte Circuit Court.--Hon. A. D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

Leachy Day & Green for appellant.

(1) The minds of the principals, in the contract sought to be made never met and assented to the same thing, in the same sense. Therefore, there was no contract between plaintiff and defendant, The Union Gas and Traction Company. Lungstrass v. Insurance Co., 48 Mo. 201; Botkin v McIntyre, 81 Mo. 557; Mfg. Co. v. Broderick, 12 Mo.App. 378. (2) There being no contract, plaintiff paid his money to defendant, The Union Gas and Traction Company, for nothing; and that defendant took and held it, not as a debtor of plaintiff, but under a trust, which the law implies from the transaction. Pomeroy's Equity, sec. 1047; Clark v. Bank, 57 Mo.App. 286; Harrison v. Murphy, 106 Mo.App. 473; Banking Co. v. Commission Co., 195 Mo. 289. (3) While the general rule is that plaintiff must have reduced his demand to judgment and exhausted his legal remedies, before he can resort to equity for relief, yet this is not so, where, as here, it is alleged that plaintiff's demand is of an equitable character, and defendant is a non-resident and has no property which can be reached by the ordinary legal or statutory process, and the transactions are complicated and a discovery from defendant's requisite. 2 Story's Equity Jurisprudence, secs. 1255, 1256; 12 Cyc., p. 12, subd. (5); Pickens v. Doris, 20 Mo.App. 1; Pendleton v. Perkins, 49 Mo. 565; Humphreys v. Milling Co., 98 Mo. 542; Webb & Company v. Lumber Co., 68 Mo.App. 554; Burnham, Munger Co. v. Smith, 82 Mo.App. 35; Kemp v. San Antonio Co., 118 Mo.App. 150. (4) The plain purpose of this amended petition is to have the sum of money received from, and claimed by plaintiff decreed to be a lien on the assets of defendant, The Union Gas and Traction Company, which have been augmented thereby and with which assets the other defendants were intermeddling, or about to intermeddle, to plaintiff's detriment; and, this he had a right to, although his money had been intermingled with and was undistinguishable from such other assets. Harrison v. Smith, 83 Mo. 210; Stoller v. Coates, 88 Mo. 514; Evangelical Synod v. Schoeneich, 143 Mo. 652; Pundmann v. Schoeneich, 144 Mo. 156.

Sutton & Sutton and Harkless & Histed for respondents.

(1) The plaintiff has no standing in equity and his petition states no cause of action. He has a plain legal remedy at law as displayed by his bill, if, indeed, he has any at all. Bank v. Packing Co., 138 Mo. 59; Ready v. Smith, 170 Mo. 163. (2) It is a well-settled proposition that no one can bind a principal by an act of an agent which he is bound to know the agent had no authority to make. Lloyd v. Modern Woodmen, 113 Mo.App. 19.

OPINION

BROADDUS, P. J.

All the parties appeared and filed demurrers to the original petition which were sustained, and plaintiff filed an amended petition to which defendants filed demurrers, the grounds of which were that the pleading did not state a cause of action and that there was a misjoinder of parties defendants. The court sustained the demurrers and plaintiff stood on his petition as amended whereupon the court rendered judgment in favor of defendants and plaintiff appealed.

The petition is of great length, the substance of which is: that the Union Gas Company, a corporation, on the 18th day of May, 1907, agreed with plaintiff to sell him a bond and some shares of its common stock, and as a consideration in part, agreed with him to bring a supply of natural gas to the town of Dearborn in Platte county, Missouri, on or before May 15, 1908; that he paid for said bond and shares the sum of $ 1,000; that if said company should fail to bring the supply of gas to Dearborn, then it would repurchase from plaintiff said bond and stock at the price he had paid for it; that no contract in fact was really made, because while the agent with whom he dealt had authority to sell the bond and stock and receive the money therefor, he had no authority to bind the said company, that it would supply natural gas to said town or repurchase the bond and stock as stated; that in October, 1907, while ignorant of the want of authority in said agent to make said contract he received from said defendant, the Union Gas Company, the semi-annual installment of interest due October the first of that year on the aforesaid bond, the sum of $ 30; that as no natural gas had been brought to Dearborn within the time mentioned, the plaintiff applied to the last aforesaid company to repurchase said bond and stock, at which time plaintiff learned for the first time of the want of authority to make a contract to that effect; that in the meantime said company had defaulted payment on the interest due on its bond aforesaid, the total issue of which was $ 350,000, and had become insolvent; and that it refused to repurchase said bond and stock, although plaintiff tendered to it the $ 30 in interest he had received.

It is alleged, that said Union Gas Company has the means to supply and is supplying natural gas to the town of Weston, and that its income from that source is about $ 1,000 per month; that it is permitting the defendant, The Weston Gas Company, to hold the legal title to its said property, and to receive the income from the business; that the officers of each are one and the same; that in order to aid and facilitate the scheme for concealing the business of the Union Gas Company and complicate its affairs, the Weston Gas Company caused to be issued, its entire capital stock of two hundred shares of the par value of $ 100 each, to the officers of the United Gas Company, all of which, except two, of said officers assigned to the Union Gas Company; that to further aid said Weston Gas Company in concealing its property, said Weston Gas Company on the 6th day of March, 1906, executed and delivered to defendant The Banking Trust Company, its deed of trust or mortgage purporting to convey to it the property right and franchises aforesaid in trust to secure bonds issued by the said Weston Gas Company amounting to $ 1,000; that said Banking Trust Company well knew at the time of taking the same, that said Weston Gas Company was not the real owner of the property purported to be conveyed, and also knew that said bonds were issued without any consideration; that under the arrangement whereby the Weston Gas Company is holding said property and dealing with it for the use and benefit of the Union Gas Company it will, unless prevented by appropriate orders of the court, continue to conduct said business, collect, and pay over to...