Johnson v. United Railways Company

• Decision Date: 31 May 1912
• Parties: JAMES B. JOHNSON, Appellant, v. UNITED RAILWAYS COMPANY et al
• Court: Missouri Supreme Court

147 S.W. 1077

243 Mo. 278

JAMES B. JOHNSON, Appellant, v. UNITED RAILWAYS COMPANY et al

Supreme Court of Missouri, First Division

May 31, 1912

Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.

Affirmed.

John A Gilliam for appellant.

(1) The court erred in sustaining demurrer to petition thereby holding that this was not the same as the previous case. Johnson v. Railroad, 227 Mo. 423. (2) The court erred in sustaining demurrer to petition thereby holding that the petition did not state facts sufficient to constitute a cause of action. Bent v. Priest, 86 Mo. 475; Ward v. Davidson, 89 Mo. 458; Story on Agency, sec 207; Chinn v. Chinn, 22 La. Ann. 599; Bosworth v. Allen, 168 N.Y. 157; 1 Morawetz Priv. Corp. (2 Ed.), secs. 243-245; Field on Corp. 174; 1 Perry on Trusts (3 Ed.), sec. 429; Wardell v. Railroad, 103 U.S. 651; Jones v. Elec. Co., 144 F. 765; Cook on Corp. (5 Ed.), sec. 649; 10 Cyc. 799; Jackson v. Ludeling, 21 Wall. 616; Menier v. Tel. Works, 9 Ch. App. Cas. 350; 2 Clark and Marshall on Corp., secs. 539 to 545, pp. 1667 to 1692; Goodwin v. Canal Co., 18 Oh. St. 169; Ervin v. Railroad, 20 F. 577, 27 F. 625; 2 Story's Eq. Jur., secs. 1261-1262; Sage v. Culver, 147 N.Y. 241; Gamble v. Q. C. W. Co., 123 N.Y. 91; Trust Co. v. Railroad, 150 N.Y. 410; Hinds v. Gas Co., 88 N.Y.S. 954; Meeker v. Iron Co., 17 F. 48; Sidell v. Railroad, 24 C. C. A. 216; Barr v. Railroad, 96 N.Y. 444; Wright v. Oroville Co., 40 Cal. 20; Ponder v. Railroad, 72 Hun, 380, 25 N.Y.S. 560; Gregory v. Patchett, 33 Beavan, 595; Meyer v. Railroad, 7 N.Y. 245; Woodroof v. Howes, 88 Cal. 184; Kochler v. Iron Co., 67 U.S. 715; Freeman v. Stine, 15 Phila. 37; Bank v. Claxton, 80 S.W. 607; Smith v. Tyler, 57 Mo.App. 668; Euneau v. Rieger, 105 Mo. 659; Angle v. Railroad, 151 U.S. 1; Pomeroy Eq. Jur. (3 Ed.), secs. 155, 1053. (3) The court erred in sustaining demurrer to petition thereby holding that the cause of action therein stated was res adjudicata. Railroad v. Hoyt, 177 Ill. 617; Railroad v. McCerrin, 75 Miss. 687; O'Hara v. Parker, 27 Ore. 156; Spicer v. United States, 5 Ct. Cl. 34; Robinson v. Howard, 5 Cal. 428; Campbell v. Hunt, 104 Ind. 210; Bennett v. Bank, 61 Mo.App. 300; Wells v. Moore, 49 Mo. 229; 1 Freeman on Judg. (4th Ed.), secs. 260-267; Gordon v. Burriss, 125 Mo. 39; Ferry Co. v. Railroad, 142 U.S. 410; Packet Co. v. Sickles, 24 How. 333; Gould v. Railroad, 91 U.S. 526; Boyd v. Alabama, 94 U.S. 645; Russell v. Place, 94 U.S. 606; Morrell v. Morgan, 65 Cal. 575; Gilman v. Rives, 10 Pet. 298; Richardson v. Barton, 24 How. 188; City v. West, 7 Wall. 106; Mfg. Co. v. Tag Co., 121 F. 313; Papworth v. City, 111 Ga. 54; Genet v. Canal Co., 163 N.Y. 178; Wiethaupt v. St. Louis, 158 Mo. 655; Detrick v. Sharrar, 95 Pa. St. 525; Loudenback v. Collins, 4 Ohio St. 251; Robb v. Coal Co., 216 Pa. St. 423; Packet Co. v. Sickels, 5 Wall. 580; Wells on Res Adjudicata, secs. 13-440; Hughes v. U.S. 71 U.S. 237; Keater v. Hock, 16 Iowa 23; Lockett v. Lindsay, 1 Idaho, 326; Wharton's Evid. (3 Ed.), sec. 782; Thomas v. Bland, 91 Ky. 1; Swanson v. Railroad, 73 Minn. 103; Duke v. Tel. Co., 71 S.C. 95; State v. McEldowney, 54 W.Va. 701; Glass v. Min. Co., 34 Mont. 88; Wilcher v. Robertson, 78 Va. 718; Langmeir v. Landes, 113 Ill.App. 137; State v. Roth, 47 Ark. 226; Gallup v. Lichter, 4 Colo. 298; Terry v. Hammonds, 47 Cal. 32; Birch v. Funk, 2 Met. (Ky.) 547; Kingston's Case, 2 Smith Leading Cases, Hare & Wallace's Notes, 791; 1 Greenleaf on Ev., secs. 528-530 (Redfield's 12 Ed.); Wibur v. Gilmore, 38 Mass. 250; Rodman v. Railroad, 59 Mich. 398; Gordon v. Burris, 153 Mo. 227. (4) The court erred in sustaining the demurrer to the petition thereby holding that the Statute of Limitations barred this suit. Chouteau v. Allen, 70 Mo. 335; Sec. 1900, R. S. 1909; Chouteau v. Rowse, 90 Mo. 191; Thurman v. James, 48 Mo. 236; Coit v. Bland, 12 App. Pr. 462, 33 Barb. 357; Harrison v. Wood, 2 Duer, 50; Jansen v. Acker, 23 Wend. 480; Rudd v. Davis, 3 Hill, 287; Bishop v. Morgan, 1 Code Rep. (N. S.) 340; Long v. McGowan, 16 Colo.App. 540; Hilton v. Admr., 110 Ky. 522; Chitty on Pleading (14 Am. Ed.), 196, 197; Koehler v. Iron Co., 67 U.S. 715; Elliott v. Mach. Co., 139 S.W. 356. (5) The court erred in sustaining demurrer to petition, because essential additional allegations have been supplied curing defects in previous petition. Warner v. Blakeman, 4 Keyes (N. Y.) 487; Murtha v. Corley, 90 N.Y. 372; Bent v. Priest, 86 Mo. 475; Gibson v. White, 3 Munf. (Va.) 94; Brown v. Admx., 61 Ky. 316; Ogden v. Wood, 51 How. Prac. 375; Com. Co. v. Railroad, 126 Mo. 344; Jones v. Elec. Co., 144 F. 765; Woodroof v. Howes, 88 Cal. 184; Banks v. Judah, 8 Conn. 145; Meeker v. Winthrop, 17 F. 48; March v. Railroad, 43 N.H. 515; Green v. Hedenberg, 159 Ill. 493; Young v. Drake, 8 Hun (N. Y.) 64; Ramsay v. Gould, 57 Barb. 398; Carson v. Gaslight Co., 80 Iowa 638; Dupont v. Railroad, 18 F. 467; Munson v. Railroad, 103 N.Y. 58; Hill v. Mining Co., 119 Mo. 22; Pollitz v. Gould, 94 N.E. 1088; Morawetz on Priv. Corp. (2 Ed.), sec. 267; Hughes v. U.S. 71 U.S. 237; Witte v. Storm, 139 S.W. 384; Sweeney v. Ref. Co., 30 W.Va. 443; Railroad v. Collins, 40 Ga. 582; Elkins v. Railroad, 36 N.J.Eq. 5; Pender v. Lushington, L. R. 6 Ch. Div. 70; Perry on Trusts (6 Ed.), secs. 129, 217, 196-197, 209, 427, 428; Railroad v. Page, 35 Ark. 304; Duncomb v. Railroad, 84 N.Y. 190; Cavagnaro v. Don, 63 Cal. 231.

Boyle & Priest, Schnurmacher & Rassieur, George T. Priest, T. E. Francis, George L. Edwards and Walter G. Neun for respondents.

(1) The petition does not state a cause of action, because it does not negative the recitals in the tripartite agreement, showing that Transit Co. was insolvent and unable to continue operations as a public service company, and that there was an urgent necessity for Transit Co. to sell its securities, as was done under and by virtue of said agreement, nor does the petition show that such sale was made on less advantageous terms than could have been secured elsewhere. Johnson v. Railroad, 227 Mo. 423; Tanner v. Railroad, 180 Mo. 1. (2) Plaintiff cannot maintain this action, because the petition shows he did not acquire his stock until after the tripartite agreement had been fully executed. Ins. Co. v. Barber, 60 L. R. A. 933; Hawes v. Water Co., 104 U.S. 450; Dinpfell v. Railroad, U.S. 209; Dannmeyer v. Coleman, 11 F. 97; Wilson v. Railroad, 120 Mo. 58. (3) The petition shows on its face that a demurrer to a petition, praying for a rescission, an injunction and an accounting, predicated on the same alleged wrongs herein counted on, was sustained, and that the judgment rendered thereon was final. That judgment was an adjudication of the case on the merits (Johnson v. Railroad, 227 Mo. 423), and hence it is a bar to the prosecution of the present case. Ins. Co. v. Smith, 117 Mo. 296; Coleman v. Dalton, 71 Mo.App. 22; Pond v. Huling, 125 Mo.App. 482; Lyon v. Mfg. Co., 125 U.S. 698; Railroad v. Railroad, 27 F. 283; Spencer v. Watkins, 169 F. 379; Turner v. Cates, 90 Ga. 731; Bank v. Walden, 1 La. Ann. 46. (4) (a) The alleged cause of action counted on is barred by the five year Statute of Limitations, in that said alleged cause of action accrued in October, 1904, while this suit was not commenced until September 16, 1910. The cause of action attempted to be asserted is predicated on an alleged fraud, and hence the five year statute is applicable. Sec. 1889, R. S. 1909; Bent v. Priest, 86 Mo. 487; Lardis v. Saxon, 105 Mo. 485; Hudson v. Cahoon, 193 Mo. 547. (b) There is no showing that would tend to extend plaintiff's time, under the fifth subdivision of sec. 1889, Revised Statutes 1909, beyond the five year period after the cause of action accrued, because there is no averment that he did not have knowledge of the facts at the date of the accrual of the alleged cause of action. County v. Bragg, 135 Mo. 291; Callan v. Callan, 175 Mo. 346; State v. Yates, 231 Mo. 276; Scott v. Boswell, 136 Mo.App. 601; State v. Musick, 145 Mo.App. 47. (5) The point made in appellant's brief, that the Statute of Limitations does not apply to this action, because it is said to be an action for trust funds fraudulently converted, is not well taken, inasmuch as that principle is applicable only to technical express trusts created by will or deed, and does not apply to resulting or implied trusts. Landis v. Saxton, 105 Mo. 486; Hudson v. Cahoon, 193 Mo. 562; Bank v. Thayer, 184 Mo. 94; Bent v. Priest, 86 Mo. 475, 488. (6) The point made in appellant's brief, that the one year Statute of Limitations (sec. 1900, R. S. 1909), granting additional time in case of nonsuit, is applicable to this case, is not well taken, because: (a) The determination of the previous case on demurrer to the petition was not a judgment of nonsuit, but was a judgment on the merits. Cases cited under pt. 2. (b) The former action was for an injunction, a rescission and an accounting, while the present action is for an accounting only; in the former case plaintiff repudiated the tripartite agreement and sought to rescind it; in this case he affirms it and seeks to recover the alleged fruits garnered from it. The one year statute is not applicable unless the form of action asserted in the new suit is precisely the same as that asserted in the suit in which nonsuit was suffered. Meddis v. Wilson, 175 Mo. 134; Whalen v. Gordon, 95 F. 305; In re Kemper, 142 F. 210; Bricken v. Cross, 163 Mo. 449.

OPINION

WOODSON, J.

This is a bill in equity instituted by the plaintiff against the defendants in the circuit court of the city of St. Louis, as a stockholder in the Transit Company, seeking an accounting for certain profits alleged to have been made by the defendants growing out of a tripartite agreement, made and entered into by and...