Moore & Co., Inc. v. J.S. McConkey

• Decision Date: 07 June 1947
• Docket Number: No. 20819.,20819.
• Citation: 203 S.W.2d 512
• Parties: JOHN A. MOORE & COMPANY, INC., RESPONDENT, v. J.S. McCONKEY, APPELLANT.
• Court: Missouri Court of Appeals

203 S.W.2d 512

JOHN A. MOORE & COMPANY, INC., RESPONDENT, v. J.S. McCONKEY, APPELLANT.

No. 20819.

Kansas City Court of Appeals. Missouri.

Opinion delivered June 7, 1947.

Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.

JUDGMENT AFFIRMED.

Charles M. Miller for appellant.

(1) The Trial Court erred in sustaining the "Bill of Interpleader" because under the pleadings and the evidence the facts did not make a case for a "Bill of Interpleader." (2) John A. Moore & Co. was at all times agent and "alter ego" for the owners of the property in question and as such had no right to file a "Bill of Interpleader" and interplead its principals as it did and obtain the judgment the Court entered. Pomeroy's Equity Juris (5 Ed.), Vol. IV, Sec. 1326, p. 913. Note American Law Reports, Vol. 97, p. 1004. Paul v. Harold Davis, Inc., (Fla.) 20 So. 2d 795. Fogg v. Goode, 78 Fla. 138, 82 So. 616. (3) John A. Moore & Co. was not a stake holder and disinterested party and at all times was the agent of the owners of the property in question and was acting as such in collusion with them in filing and maintaining said Bill of Interpleader. It is in fact a wrongdoer, and also the "alter ego" of its principals. Its act is the act of the principals. 15 R.C.L., Sec. 9, p. 227; Calloway v. Miles, (C.C.A. 6) 30 F. 2d 14, 15. (4) The liability, if any, between the agent and principals creates an independent liability of the agent to the principals. United Rys. Co. v. O'Connor, 153 Mo. App. 128, 132 S.W. 262. (5) The owners had no right to the $5,000 or any valid reason to assert claim thereto, and that such claim, if any, was made wholly without any foundation whatever or based on any real or substantial ground, and it had no reasonable cause for real doubt as to who was entitled to the $5,000. Little v. Union Trust Co., 197 Mo. 281, 94 S.W. 890; Reppetto v. Roggio, 201 Mo. App. 628, 213 S.W. 525, 526. Baseless claims will not support a Bill of Interpleader. Kahn v. Garvan, 263 Fed. 909, 915. Calloway v. Miles, (C.C.A. 6) 30 F. 2d 14, 15. (6) Their alleged claim is nothing more than an attempt to have it serve as an attachment against McConkey's money, dependent upon getting a judgment in the future against McConkey, for which there are no grounds. United Rys. Co. v. O'Connor, 153 Mo. App. 128, 132 S.W. 262. Granite Bituminous Co. v. Stance, 225 Mo. App. 401, 37 S.W. 2d 469, 471. Calloway v. Miles, (C.C.A. 6) 30 F. 2d 14, 15. (7) McConkey elected to proceed against Moore & Co. as agent of undisclosed principals, for return of the $5,000 and to permit Moore & Co. to interplead unlawfully, violates McConkey's right to recover the $5,000 and the most in any event McConkey could recover would be the $5,000, less $350 attorney's fees and Court costs if the money is paid into the registry of the Court in the Interpleader suit, and without just cause or right takes away from McConkey's $5,000, $350 attorney's fees plus Court costs, which in no event can McConkey ever recover. Restatement of Law of Agency, Section 322, page 714. Hartwig Realty Co. v. U.C. Commission, 350 Mo. 690, 168 S.W. 2d 78, 81. (8) The Court was without authority to allow an attorney's fee of $350 to be taken from the $5,000 and thus charge the same against McConkey, and if allowable, was excessive. Century Ins. Co. v. 1st National Bank, (C.C.A. 5) 102 F. 2d 726, 729; 133 F. 2d 789, 792. Groves v. Sentell, 153 U.S. 465, 485. General Am. Life Ins. Co. v. Jackel, 45 F. Supp. 353. American Life Ins. Co. v. Luckman, 21 F. Supp. 39.

Paul R. Stinson and Dick H. Woods for respondent.

Stinson, Mag, Thomson, McEvers & Fizzell of counsel.

(1) The trial court properly sustained the Bill of Interpleader. Section 18, Civil Code of Missouri (Mo. R.S.A., § 847.18). (2) The historic technical requirements of interpleader have been abolished by Section 18, Civil Code of Missouri. Section 18, Civil Code of Missouri. Rule 22(1), Federal Rules of Civil Procedure. Gerard Trust Co. v. Vance, 4 F.R.D. 255 (D. Ct. Pa. 1945). Standard Surety & Casualty Co. v. Baker, 105 Fed. (2d) 578 (C.C.A. 8, 1939). Metropolitan Life Ins. Co. v. Segaritis, 20 F. Supp. 739 (D. Ct. Pa. 1937). Hunter v. Federal Life Ins. Co., 111 F. (2d) 551 (C.C.A. 8, 1940). Rogers, Historical Origins of Interpleader, (1942) 51 Yale L.J. 924. Buder, Interpleader in Missouri, (1942) 7 Mo. L.R. 203. 4 Pomeroy, Equity Jurisprudence, (5th Ed. 1941) § 1322. Chafee, Federal Interpleader, (1940) 49 Yale L.J. 377, 380, 412. (3) Respondent stated and proved a case entitling it to interpleader relief under the old practice. Tillman v. Bungenstock, 185 Mo. App. 66, 171 S.W. 938 (1914). Woodmen of the World v. Wood, 100 Mo. App. 655, 75 S.W. 377 (1903). Repetto v. Raggio, 201 Mo. App. 628, 213 S.W. 525 (1919). Gietz v. Blank, 108 S.W. (2d) 1066 (St. Louis C. of App., 1937). McGinn v. Bank, 178 Mo. App. 347, 166 S.W. 345 (1914). Leonard v. Dougherty, 221 Mo. App. 1056, 296 S.W. 263 (1927). (4) The claim of defendants Reefer and Lorsch to the $5000 is substantial and is not merely colorable. Webb & Kinne v. Steiner, 113 Mo. App. 482, 87 S.W. 618 (1905). Scott v. Lewis, 177 Mo. App. 8, 163 S.W. 265 (1913). Quigley v. King, 182 Mo. App. 196, 168 S.W. 285 (1914). Doerner v. St. Louis Crematory & Mausoleum, 80 S.W. (2d) 721 (St. L. Ct. of App., 1935). Shupe v. King Realty Co., 29 S.W. (2d) 230 (K.C. Ct. of App., 1930). Norris v. Letchworth, 167 Mo. App. 553, 152 S.W. 42 (1912). In re First National Bank of Adrian, 207 Mo. App. 115, 230 S.W. 358 (1921). (5) This being an equity case, the findings of the trial judge will not be disturbed unless plainly erroneous. Smalley v. Queen City Bank, 94 S.W. (2d) 954 (Springfield Ct. of App., 1936). Snow v. Funck, (Mo. Sup.) 41 S.W. (2d) 2 (1931). Klaber v. Booth, (Mo. Sup.) 49 S.W. (2d) 181 (1932). Manahan v. Manahan, (Mo. Sup.) 52 S.W. (2d) 825 (1932). Shaw v. Hamilton, 346 Mo. 366, 141 S.W. (2d) 817 (1940). Schebaum v. Mersman, (Mo. Sup.) 191 S.W. (2d) 671 (1946). Hooper v. Wineland, 131 S.W. (2d) 232 (Springfield Ct. of App., 1939). Kidd v. Brewer, 317 Mo. 1047, 297 S.W. 960 (1927). Lambert v. Rodier, 194 S.W. (2d) 934 (Kansas City Ct. of App., 1936). (6) The trial court's allowance of attorneys' fees was proper. Woodmen of the World v. Wood, 100 Mo. App. 655, 75 S.W. 377 (1903). County Court v. Baker, 210 Mo. App. 65, 241 S.W. 447 (1922). Hunter v. Federal Life Ins. Co., 111 F. (2d) 551 (C.C.A. 8, 1940).

SPERRY, C.

This is an interpleader action, instituted by John A. Moore & Co., Inc., a real estate dealer, plaintiff, against defendants Serena B. and Hans R. Lorsch and Anne G. and Max C. Reefer, owners of the Rasbach Hotel under a lease for a term of years, and defendant J.S. McConkey, who sought to purchase the hotel from the first named defendants through the agency of plaintiff, to whom McConkey paid $5000 as earnest money in connection with his offer to purchase.

Plaintiff alleged, and the evidence tended to prove, that defendants Lorsch and Reefer were the owners of a leasehold estate upon the land and improvements comprising the Rasbach Hotel, in Kansas City, Missouri, and were the owners of the furniture and equipment used therein; that said defendants gave to plaintiff the exclusive agency to sell said property within a specified period of time, for which service plaintiff was to be paid a commission; that defendant McConkey, on December 21, 1944, submitted a written offer to buy said property for the sum of $57,500, and paid to plaintiff, as earnest money, the sum of $5000; that he offered to pay $11,000 cash on delivery of assignment of the leasehold interest and bill of sale for the personal property, together with possession thereof, and to execute notes secured by deed of trust on the property in the amount of $41,500; that by the terms of said written offer defendants Lorsch and Reefer were required to accept said offer on or before December 23, 1944, and the entire transaction be completed and possession delivered to McConkey within 20 days after acceptance of said offer to purchase; that all of said owners, with the exception of Serena B. Lorsch, accepted said offer, in writing, subject to minor requirements; that defendant McConkey accepted, in writing, the above mentioned written counter proposal of defendants Lorsch and Reefer; (we do not mean to say that the failure of Serena B. Lorsch to sign said proposal was immaterial but we are here merely giving a resume of the happenings, and are not declaring their legal effect); that, thereafter, defendants McConkey, Lorsch and Reefer were unable to agree on the terms of a mortgage agreement and contract covering the unpaid balance of the purchase price; that the time fixed for completion of the transaction expired; and that McConkey demanded of plaintiff that he pay the $5000 over to him, and defendants Lorsch and Reefer also demanded payment to them of the said $5000, claiming that the transaction failed through no fault of theirs but because McConkey refused to go forward according to the contract.

The court heard evidence and adjudged that plaintiff was entitled to implead all defendants in this action; ordered the $5000 paid into the registry of the court, which was done; allowed plaintiff his costs, including $350 for attorneys' fees same to be paid out of said fund, and discharged plaintiff; and ordered the defendants to plead and show their respective interests and rights in and to said fund. Defendant McConkey appeals.

He contends that plaintiff failed to allege and prove facts sufficient to support the judgment; that plaintiff failed to establish his right to maintain his position as an interpleader.

Interpleader is an equitable remedy, existing independent of statute. 4 Pomeroy's Eq. Jurisprudence 902; Lavelle v. Belliu, 121 Mo. App. 442, 448, 97 S.W. 200; Standard Surety & Casualty Company v. Baker, 105 Fed. 2d, 578, l.c. 580, 581. As such it "... depends upon and requires the existance of...