Gilliam v. Loeb
| Decision Date | 14 April 1908 |
| Parties | GILLIAM et al., Appellants, v. LOEB, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Newton Circuit Court.--Hon. F. C. Johnston, Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--This action was originally instituted before a justice of the peace on the following complaint:
"Plaintiff's for their statement say that in the spring of 1906, they and defendant and a number of others were desirous of purchasing a jack; that defendant was desirous and called on plaintiffs and a number of others for the purpose of getting up a company to purchase a jack and bring him into their neighborhood, that plaintiffs and defendant and others held meetings for the purpose of getting up a company that was being promoted by said defendant for the purpose of buying a jack aforesaid, each member of said company to take a small share in the enterprise; that defendant was to become a member, and did become a member of said company or co-partnership and was acting for the company in getting up the enterprise and buying a jack for the said company; that the defendant was desirous of purchasing what is known as the old "Mit" Yost jack and went around and saw plaintiffs and others and informed and represented to them that said "Mit" Yost jack would cost eight hundred dollars ($ 800), and that said "Mit" Yost would not take a cent less than eight hundred dollars for said jack and that a number of the said company protested against the price of the said jack as being too high, and said defendant informed plaintiffs and others that he would again see if the said "Mit" Yost would sell his jack for a sum less than eight hundred dollars, and again informed plaintiffs and other members of the company said jack could not be purchased from the said "Mit" Yost for a less sum; that the said jack was purchased from the said "Mit" Yost for said company by said defendant, who represented the cost of said jack to be eight hundred dollars, to be paid to the said "Mit" Yost, and the ownership of the said jack was divided up in sixteen parts, the said plaintiffs taking three-sixteenths interest in said jack; in connection with others of the company, making eleven-sixteenths, and said defendant five-sixteenths interest; that the said plaintiff paid to the said defendant fifty dollars ($ 50), to be paid the said "Mit" Yost, together with one note of $ 100 in full of their interest; that the said plaintiffs relied upon and believed the statement and representations made by defendant to plaintiffs of the cost of said jack, and upon his representations the said plaintiffs parted with the said fifty dollars; that said defendant's representations and statements as aforesaid to members of said company were false and fraudulent in this, the said "Mit" Yost sold the jack at the price of four hundred dollars ($ 400) on one year's time and received through the said defendant from some members of the company, their notes to the amount of four hundred dollars, payable in one year after date, and the said defendant, through his fraudulent representations and schemes and statements, to his co-partners or company induced and willfully and fraudulently obtained from the company four hundred dollars more than the cost of the said jack to said company. Among this is the fifty dollars paid by the plaintiffs, for which said plaintiffs pray judgment for fifty dollars and costs of suit."
Plaintiffs having recovered judgment before the justice an appeal was taken to the circuit court, where an amended complaint was filed, which reads as follows:
"Plaintiffs for their amended petition state that they are farmers and cattle raisers and are partners in such business, and were at all times hereinafter mentioned; that defendant solicited plaintiffs to join with him and others for the purchase of a certain jack owned by one Yost and to contribute a certain portion of the purchase money for that purpose and thereby with defendant and such others as he may interest, become the owners of the jack so to be purchased as aforesaid; that defendant falsely and fraudulently represented and pretended to plaintiffs that said Yost asked for this particular jack $ 800, and would not take any less, when defendant well knew said Yost would then take $ 400 therefor; that these plaintiffs, relying upon and believing said false and fraudulent representations of defendant, and believing same to be true, not knowing the real truth, agreed to pay and contribute for the purchase of said jack $ 150, and did pay and contribute that sum to defendant and authorized him as agent for plaintiffs to purchase the same; that defendant took upon himself the agency of purchasing the jack and bought the same from Yost for the secret price of $ 400, all of which was concealed from plaintiffs, and he falsely represented to them he had paid $ 800 therefor; that according to the terms of the purchase, as agreed on between the parties, plaintiffs were to own three-sixteenths of said jack; that by reason of the false representation and pretenses aforesaid, and by reason of the trust and confidence reposed in him, all as above stated, there is due from defendant to plaintiffs, $ 75, as the difference between what said defendant purchased said jack for, on the basis of said interest of plaintiffs therein, and what he represented was its cost, for which plaintiffs ask judgment, less $ 25 which they voluntarily remit in this action."
On motion of defendant the court struck out the amended petition and afterwards, on motion of defendant, dismissed the cause, to which rulings plaintiffs saved exceptions, and final judgment having been entered against them, prosecuted this appeal.
Reversed and remanded.
G. Emerson and O. L. Cravens for appellants.
(1) The claim advanced below by defendant as a ground for the striking out of the amended petition was that it was a departure from the original cause of action. The Supreme Court has announced a test under this statute in determining whether the amendment will be allowed. The rule is quoted from the Supreme Court of Vermont: "As long as the plaintiff adheres to the contract or injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury, is not an introduction of a new cause of action." Rippee v. Railroad, 154 Mo. 358; 71 Mo.App. 557; Clothing Co. v. Railroad, 71 Mo.App. 241; Heman v. Fanning, 33 Mo.App. 50; Rechnitzer v. Vogelsong, 117 Mo.App. 148; Dowdy v. Wamble, 110 Mo. 280, 41 Mo.App. 573; Straub v. Eddy, 47 Mo.App. 189; Hall v. Railroad, 80 Mo.App. 463; Wood v. Railroad, 39 Mo.App. 63; Nutter v. Houston, 42 Mo.App. 365; Lamb v. Bush, 49 Mo.App. 337; Eubank v. Pope, 27 Mo.App. 463; Shaffner v. Leahy, 21 Mo.App. 110; King v. Railroad, 79 Mo. 328. (2) The court erred in dismissing the cause after striking out the amended petition. The original petition sufficiently set forth plaintiffs' course of action. Hale v. Van Dever, 67 Mo. 732; Allen v. McMonagle, 77 Mo. 478; Force v. Squier, 133 Mo. 306; Bell v. Boyd, 66 Mo.App. 137; Glenn v. Weary, 66 Mo App. 75; Collins v. Burnes, 66 Mo.App. 70; Boefer v. Sheridan, 42 Mo.App. 226; Johnson v. Moffett, 19 Mo.App. 159; Strathmoun v. Gorla, 14 Mo.App. 1. (3) Even if the allegations are tantamount to an averment of partnership, yet a right of action at law exists in favor of one copartner against the other for fraud and deceit in enticing him into a concern, or in obtaining money or property from him by fraudulent representations. The transactions set out in the two petitions were had before any partnership was launched. Bates on Partnership, sec. 897; Rice v. Culver, 32 N.J.Eq. 601; Hall v. Wilson, 112 Mass. 444; Mose v. Hutchins, 102 Mass. 439; Child v. Swain, 69 Ind. 230; Gates v. Paul, 117 Wis. 170, 94 N.W. 55; Bergeron v. Miles, 88 Wis. 397, 48 Am. St. 911.
George R. Clay and Horace Ruark for respondents.
(1) Plaintiffs having by their allegations shown a joint cause of action or right of recovery in others besides themselves cannot sue alone without joining those jointly interested whether copartners or joint owners. One of two joint owners of goods cannot sue alone for their conversion. Little v. Harrington, 71 Mo. 690. Section 544, Revised Statutes 1899, provides that those who are united in interest must be joined as plaintiffs, and if one so interested refuses to join as plaintiff then he may be made a party defendant. In case of non-joinder there can be no recovery by the party suing for his aliquot part. Rainder v. Smezer, 28 Mo. 310; Ryan v. Riddle, 78 Mo. 521; Miller v. Crigler, 83 Mo.App. 395; Seay v. Sanders, 88 Mo.App. 486. (2) Besides, the plaintiffs' petition designates the company as being a copartnership of which it alleges the defendant and plaintiff were members, and which company they claim defendant defrauded. Now it is well settled that one partner cannot sue another in relation to the partnership matters, whether arising in contract or tort. Baldwin v. Walsen, 41 Mo.App. 243; Morin v. Martin, 25 Mo. 361; Leckie v. Rothenbarger, 82 Mo.App. 615; Bond v. Benis, 55 Mo. 524; Scott v. Coruth, 50 Mo. 120; 62 Mo.App. 131. (3) The amended statement was properly stricken out, as attempting to change a joint to a several cause of action. It is not permissible on appeal from a justice of the peace to change a joint cause of action to a several cause of action. "For in that case there is an entire change of cause of action from a joint to a several cause of action which is not permissible." Slaughter v. Davenport, 151 Mo. 29; Slaughter v. Davenport, 82 Mo.App. 652; Thieman v. Goodnight, 17 Mo.App. 434; Evans v. Railroad, 67 Mo.App. 255; Gregory v. Railroad, 20 App. 448; Adler v. Railroad, 110 Mo.App. 342;...
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