Granite Bituminous Paving Co. v. Stange

• Decision Date: 03 April 1931
• Docket Number: No. 4827.,4827.
• Citation: 37 S.W.2d 469
• Parties: GRANITE BITUMINOUS PAVING CO., RESPONDENT, v. H.F. STANGE, APPELLANT.
• Court: Missouri Court of Appeals

37 S.W.2d 469

GRANITE BITUMINOUS PAVING CO., RESPONDENT, v. H.F. STANGE, APPELLANT.

No. 4827.

In the Springfield Court of Appeals. Missouri.

Opinion filed April 3, 1931.

Appeal from Jasper County Circuit Court. — Hon. George Farris, Special Judge.

AFFIRMED.

Chas. R. Warden, Norman Cox and Hugh Dobbs for appellant.

Respondent's bill does not state a cause of action of interpleader, its bill showing on the face thereon that respondent is not mere stakeholder, without interest, of an identical fund claimed by appellant and Jones, but pleads an independent liability to appellant based on a definite contract between appellant and respondent and to which Jones is not a party, and also pleads an independent and different liability to Jones separate from and independent of the contract between appellant and respondent and based on the contract and bond of the respondent with the city, respondent's liability to Jones being on a quantum meruit in a suit on the bond, and this liability being unliquidated, so there is no identity of fund. Pomeroy's Equity Jurisprudence (4 Ed.), vol. 4, pp. 3172-3179, secs. 1322, 1323, 1324, 1325, 1326; Secs. 1040, 1041, R.S. 1919; Hartsook & Home v. Chrissman, 114 Mo. App. 558, l.c. 561-2; Calloway v. Miles, 30 Fed. (2d) 14; City v. Bank, 98 Am. St. Rep. 834, 33 C.J. 438; Prudential Ins. Co. of America v. Fleming et al., not yet reported.

McReynold & Blair and A.J. Thornberry for respondent.

(1) Respondent's bill states a cause of action, as it sets forth fully all the facts requisite to a bill of interpleader. 4 Pomeroy's Eq. Juris. (4 Ed.), sec. 1479; Supreme Council v. Palmer, 107 Mo. App. 157, 80 S.W. 699; Novinger Bank v. Trust Co., 196 Mo. App. 335, 189 S.W. 826; Dentrup v. Johnson, 14 S.W. (2d) 537; Engineer's Const. Co. v. Tolbert et al., 223 Pac. 56. (2) There is no claim of separate liability under an independent contract in this case. Appellant endeavors to confuse the claim and title to the $535 with the means of enforcing the claim. 4 Pomeroy's Eq. Juris. (4 Ed.), secs. 1477 and 1466; Love v. Life Ins. Co., 153 Mo. App. 144; City of St. Louis ex rel. v. Von Phul, 133 Mo. 561, 34 S.W. 843; City of St. Louis ex rel. v. Construction Co., 175 Mo. App. 555; State ex rel. Kingsley v. Carterville Const. Co., 284 S.W. 150; McGinn v. Interstate Bank, 178 Mo. App. 347. The bond given by respondent Paving Company takes the place of the ordinary mechanic's lien under the laws of Missouri and an action in the nature of a bill of interpleader lies in this case. Mo. State Highway Com. v. Cooper Const. Co., 286 S.W. 738; City of St. Louis v. Von Phul, 133 Mo. 561.

BAILEY, J.

This is an interpleader suit. The bill of interpleader sets up that respondent, the Granite Bituminous Paving Company, hereinafter referred to as the plaintiff, is a corporation and that in the year 1926, it contracted with the City of Joplin, Missouri, to pave a certain portion of Main street in said city, and gave bond to pay for all labor and material furnished in carrying out said contract. It is further alleged that plaintiff employed H.F. Stange, defendant herein, to perform a part of the paving contract, said Stange having full power to employ other labor and subcontractors, to whom plaintiff, by reason of its bond, became liable for the value of their labor and materials furnished; that J.C. Jones (the other defendant who is not a party to this appeal), was so employed by defendant Stange, either as a laborer or subcontractor, and performed labor and claims to have furnished materials on said contract; that plaintiff has in its possession $535 which is the total balance due by plaintiff for labor and materials furnished for said paving; that defendant Stange and defendant Jones each claim all of said sum; "that defendant Stange denies any right of defendant Jones to said sum or any portion thereof, and defendant Jones denies any right of defendant Stange to said sum or any portion thereof; that both said defendants have demanded payment of said sum from plaintiff and have threatened and are threatening to sue plaintiff therefor; that plaintiff owes said balance of $535 as aforesaid held by it, but is unable to determine which of said defendants is entitled thereto or to which of said defendants said sum should be paid." Then follows a formal prayer that plaintiff be permitted to pay the money into court and be discharged.

The answer to the bill of interpleader filed by defendant Stange, sets up that he, as a subcontractor, employed Jones to perform certain work by contract; that "under said contract and bond aforesaid, the plaintiff herein became liable under said contract to the defendant Stange herein for the work and labor done and materials furnished under said subcontract and under said bond and the statute aforesaid became personally liable and indebted to the defendant Jones, for which said Jones had a separate action against plaintiff for all the work done and materials furnished under said paving contract, and a separate action against this defendant Stange." It is further alleged that there is no identity of funds as between defendants Stange and Jones; that, "defendant Jones' right to sue plaintiff is an independent suit and cause of action as one having performed labor under plaintiff's contract and bond with the city of Joplin, and is an unliquidated claim and in no way depends on the right of defendant Stange to sue plaintiff on his contract with plaintiff for the balance due under the terms of said contract, and the right of said defendant Jones to sue plaintiff on said bond does not constitute a lien upon or right to the particular chose in action in question, but is a right to recover the value of services performed under said bond, which said value of said services constitutes an unliquidated claim and not a claim or lien upon the particular debt which plaintiff owes defendant Stange as the balance due on the contract between plaintiff and defendant Stange; that the value of the services of defendant Jones for which he has a right of action against plaintiff on said bond is uncertain and unliquidated, so that there is and can be no identity of the fund or choses in action claimed."

It is further alleged that plaintiff has no right to maintain a bill of interpleader because plaintiff has a personal interest as a bond litigant who can be directly sued thereon. There are other allegations which need not be set out for the purposes of this appeal.

Upon trial to the court a judgment was rendered sustaining the bill of interpleader and requiring defendants to interplead. Defendant Stange has appealed from that judgment.

It is urged that plaintiff's bill fails to state a cause of action of interpleader because, "its bill showing on the face thereof that respondent is not a mere stakeholder, without interest, of an identical fund claimed by appellant and Jones, but pleads an independent liability to appellant based on a definite contract between appellant and respondent and to which Jones is not a party, and also pleads an independent and different liability to Jones separate from and independent of the contract between appellant and respondent and based on the contract and bond of respondent with the city, respondent's liability to Jones being on a quantum meruit in a suit on the bond, and this liability being unliquidated, so there is no identity of fund."

The equitable doctrine of interpleader has been evolved from necessity and as a convenient method of adjudicating the rights of rival claimants to a fund or property held by a third person having no personal interest therein, so as to permit such third person to relieve himself of the vexation and expense of several actions at law and the danger of successive judgments for the same thing. In Pomeroy's Equity Jurisprudence, the essential prerequisites to maintain a bill of interpleader are thus stated:

"1. The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded;

"2. All their adverse titles or claims must be dependent, or be derived from a common source;

"3. The person asking the relief — the plaintiff — must not have nor claim any interest in the subject-matter;

"4. He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder." [(4 Ed.), Vol. 4, p. 3172, sec. 1322.]

Our courts have accepted that statement of the equitable principles involved in the doctrine, which statement of the law is, indeed, almost universally recognized. [Smith v. Grand Lodge A.O.U.W., 124 Mo. App. 181, l.c. 202; Hartsook v. Chrissman, 114 Mo. App. l.c. 561; Roselle v. Bank, 119 Mo. 84, 24 S.W. 744.]

The right is also defined, as follows: "Where two or more persons severally claim under different titles, derived from a common source, the same debt or thing from another who, not claiming any title or interest therein himself, and not under independent liability to either of the claimants, and not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him or fears that he may suffer injury from the conflicting claims of the parties, such debtor or person in possession is entitled to the remedy of interpleader." [33 C.J., p. 427, sec. 11.]

Applying the foregoing principles to the allegations of plaintiff's petition in this case, we shall first consider whether or not there is an identity of fund or debt claimed by defendants. It is admitted that defendant H.F. Stange was employed by plaintiff to perform a certain portion of a paving contract as to which plaintiff was employed as a general contractor by the city of Joplin. It is also admitted that plaintiff owed, on the contract with Stange, the sum of $535, at the time the bill of interpleader was filed....