Grover v. Marrott
| Decision Date | 30 June 1922 |
| Docket Number | No. 23515.,23515. |
| Citation | 192 Ind. 552,136 N.E. 81 |
| Parties | GROVER v. MARROTT et al. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Marion County; Lewis B. Ewbank, Judge.
Action by George J. Marott and others against Arthur B. Grover and others. From judgment for plaintiffs defendant named appeals. Affirmed.
James M. Leathers, of Indianapolis, for appellant.
Ferdinand Winter, Chas. O. Roemler, Frank C. Ayres, and William L. Taylor, all of Indianapolis, for appellees.
Appellees, plaintiffs and cross-complainants, in the court below, recovered a judgment against appellant for $17,893.76. Appellant perfected an appeal to this court and assigned as error: (1) The overruling of his demurrer to the complaint and to each of the cross-complaints; (2) the overruling of his motion to require plaintiffs and cross-complainants respectively to separate their causes of action into separate paragraphs; (3) the overruling of his motion to have the cross-actions tried separate and apart from the original action; (4) the overruling of his motion for a new trial.
Appellant takes the position that the pleadings challenged by the demurrers for want of sufficient facts “involved several causes of action for damages for alleged fraud in favor of the several plaintiffs, and not a joint one in favor of all; that plaintiffs and cross-complainants, if entitled to sue at all, must sue separately, each for the damages he has suffered.” Under this statement of appellant, the first three errors here assigned may be considered together as asserting and challenging each pleading on the ground that neither affirmatively showed that all of the complainants had a common interest in the subject-matter of the action and in the relief sought.
The complaint in this case covers 23 typewritten pages of the record, but we will refer only to such facts as will tend to show its theory and scope. The material allegations of the cross-complaints were not materially different from those of the complaint. The judgment was for a gross amount. Consequently, for the purposes of this opinion, the complaint and both cross-complaints, except as to points where particularity is required, will be referred to as the complaint, and considered under one specification of error, overruling the demurrer to the complaint.
The cross-complainants were Sarah G. Dillman in her own right as the sole heir of William H. Dillman, deceased, and Kate F. McGowan in her own right and as trustee under the will of Hugh J. McGowan, deceased. The complaint states that all of the parties in interest other than plaintiffs refused to join, and are made defendants.
It appears from the complaint that on and for some time prior to March 3, 1903, J. H. McBride, of Cleveland, Ohio, was the owner of certain real estate located near that city, and, desiring to sell the same, gave appellant an option or contract of purchase at a price of $125,000. Thereafter, at the solicitation of appellant, plaintiffs, George J. Marott, Medford B. Wilson, Jacquelin S. Holliday, Robert Elliott, E. H. Darrach, August M. Kuhn, and cross-complainants' decedents, William H. Dillman and Hugh J. McGowan, with William E. Kurtz, James Whitcomb Riley, Burton E. Parrott, Harry J. Milligan, Henry Eitel, William Fortune, and Henry C. Ellison, formed a syndicate and subscribed various sums of money as a common fund, which was intrusted to appellant as their agent for the purchase of the McBride real estate, which appellant falsely and fraudulently represented to be worth $160,000, and that it could be bought at that price and no less, when he then and there well knew it was worth only $125,000, and that it could be purchased for that sum, and that McBride was willing to sell the same to the syndicate thus formed for $125,000; that appellant also then well knew that the members of the syndicate did not know the value of this real estate, nor that the owner thereof would sell the same for $125,000, nor that appellant had a secret agreement with McBride whereby the latter was to pay appellant the difference between $125,000 and $160,000 on his closing the sale; that upon the consummation of the sale, McBride paid to appellant for his own use and benefit, out of the consideration so paid by the syndicate, the sum of $35,000, and of which payment the plaintiffs and their associates had no knowledge, nor did they know of such secret agreement until about January 1, 1916; that the real estate so purchased was to be handled, superintended, and resold by appellant agreeable to a certain contract entered into between the members of the syndicate and appellant, wherein it was agreed that after the return to these members of a certain agreed sum of money, the remainder, whether in money or real estate, should be and become the property of appellant as and for his commission and compensation for his services in the purchase and his other activities in and concerning the entire matter; that appellant, in furtherance of his agreement with the syndicate, caused the real estate to be conveyed to a trust company of his selection in trust for plaintiffs and any other interested therein, which deed recited the consideration as $160,000.
The prayer of this complaint is not for damages in gross, but each plaintiff demanded a judgment against appellant for a definite and fixed sum of money as his proportionate share of the alleged secret profit. Appellant directs our attention to the several demands thus made by the plaintiffs as showing want of community of interest in the relief sought, and hence he insists there was a misjoinder of parties plaintiff. Answering this contention, we may say that the theory of a pleading is controlled by its leading allegations, and the prayer is merely advisory. Phillips v. Gammon, 188 Ind. 497, 124 N. E. 699;Muncie, etc., Trac. Co. v. Citizens' Gas, etc., Co., 179 Ind. 322, 329, 100 N. E. 65;Crawforsville Trust Co. v. Ramsey, 178 Ind. 258, 275, 98 N. E. 177;Goecker v. McOsker, 177 Ind. 607, 615, 98 N. E. 724;Barnum v. Rallihan, 63 Ind. App. 349, 361, 112 N. E. 561.
This was not an action to avoid the McBride land purchase or to recover the money paid by complainants and used for that purpose. It was, however, an action to recover damages by reason of fraud and deceit practiced by appellant to the injury of appellees. Looking to the merits of this case, it will be observed that our Civil Code (section 263, Burns 1914), provides that:
“All persons having an interest in the subject of the action, and in obtaining the relief demanded, shall be joined as plaintiffs, except as otherwise provided in this act”
-and section 270:
“Of the parties in the action, those who are united in interest must be joined as plaintiffs or defendants; but, if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint.”
These Code provisions are important in the consideration of the questions here presented, for they not only re-enact the equity rule for the joinder of parties and confirm a large portion of the common-law rules, but they “look to a more free union of parties as plaintiffs in the same action than was allowed by the courts of law under the former system.” Pomeroy's Code Rem. (4th Ed.) § 115. Hence the equitable doctrine has been broadened in order that all rights and the pursuit of all remedies, whether legal or equitable, between the parties in interest, may be finally determined in one civil action. Field v. Holzman, 93 Ind. 205, 209;Lake Erie, etc., Co. v. Hobbs, 40 Ind. App. 511, 517, 81 N. E. 90;Continental Ins. Co. v. Bair, 65 Ind. App. 502, 511, 114 N. E. 763, 116 N. E. 752; Pomeroy's Code Rem. (4th Ed.) §§ 113, 117.
Mr. Pomeroy, after a careful study of legislation as to the unity of plaintiffs in legal and equitable actions (section 117, p. 168, supra) says:
“Persons having an interest in the subject of the action, and in obtaining the relief demanded may be joined as plaintiffs in all actions, whatever be their nature, although the rights of such persons are legally several, and although at the common law they would be required to institute separate actions; or, in other words, the plain import of the legislation-its language not being confined to any class of suits-is to enlarge the number of cases in which persons may be joined as co-plaintiffs, and to place legal actions in this respect upon exactly the same footing as those which are equitable in their nature.”
The rule for the joinder of plaintiffs in this jurisdiction, briefly stated, requires that all who unite as plaintiffs must have a common interest in the subject-matter of the action, and each must be interested in the relief of the other, but equality of interest, or that such interest may not be legally severable, is not essential. Troxel v. Thomas, 155 Ind. 519, 521, 58 N. E. 725;Home Ins. Co. v. Gilman, 112 Ind. 7, 13 N. E. 118;Elliott v. Pontius, 136 Ind. 641, 35 N. E. 562, 36 N. E. 421;Armstrong v. Dunn, 143 Ind. 433, 41 N. E. 540;Martin v. Davis, 82 Ind. 38;McIntosh v. Zaring, 150 Ind. 301, 49 N. E. 164; Continental Ins. Co. v. Bair, supra; Pomeroy's Code Rem. (4th Ed.) §§ 115, 116.
In this connection it may be noted that we are not unmindful of the rule that a complaint by several plaintiffs must state a cause of action in favor of all, or it will be insufficient as against a demurrer for want of facts. Brunson v. Henry, 140 Ind. 455, 39 N. E. 256;Frankel v. Garrard, 160 Ind. 209, 66 N. E. 687; Elliott v. Pontius, supra; Knepper v. Eggiman, 177 Ind. 56, 60, 97 N. E. 161;Prudential Ins. Co. v. Diffenbaugh, 68 Ind. App. 699, 121 N. E. 301. While these rules are general and may be said to be elementary, yet they are basic principles in the decision of the questions here presented.
Appellant originated the syndicate scheme. He induced appellees to subscribe money to a common fund for the purpose of purchasing the McBride...
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