Robinson v. Seay
| Decision Date | 24 June 1913 |
| Citation | 158 S.W. 409,175 Mo.App. 713 |
| Parties | THOMAS J. ROBINSON, Respondent, v. A. J. SEAY, Appellant |
| Court | Missouri Court of Appeals |
June 2 1913, Argued and Submitted
Appeal from Franklin Circuit Court.--Hon. R. A. Bruer, Judge.
Reversed and remanded.
J. C Kiskaddon and A. H. Kiskaddon for appellant.
(1) An action for contribution between co-obligors is an action at law and not a suit in equity. Jeffries v. Ferguson, 87 Mo. 244; Hanna v. Hyatt, 67 Mo.App. 308; Van Pelten v. Richardson, 68 Mo. 379. (2) The judgment rendered against defendants in the action of Heckman v Robinson and Lambeth, to which action A. J. Seay was not a party, is in no way binding on said Seay. Rieschick v. Klingelhoefer, 91 Mo.App. 430; Loyd v. Tracy, 53 Mo.App. 175; Ford v. O'Donnell, 40 Mo.App. 51. (3) In the case of Heckman v. Robinson and Lambeth, even if A. J. Seay had been made a party, and necessarily he would have had to be party on that side, in an action between said parties to settle their respective rights inter sese, they not being adversary parties, the judgment rendered is not binding on any of them, but they may litigate their respective rights, whatever they may be. Bank v. Bartle, 114 Mo. 276; McMahon v. Geiger, 73 Mo. 145; Springfield v. Plummer, 89 Mo.App. 515. (4) A co-obligor who is not a party to the action against his other obligors cannot be and is not bound by any judgment rendered against the actual parties to the action, unless he had specific notice of the pendency of the action, with a demand to appear and defend, and an opportunity to defend. Mere knowledge that such an action had been brought, even attendance at the trial and testifying thereat as a witness, is not sufficient notice. Wheelock v. Overshiner, 110 Mo. 100; Fallon v. Murray, 16 Mo. 168; Field v. Hunter, 8 Mo. 128; Springfield v. Plummer, 89 Mo.App. 515; Garrison v. Trans. Co., 94 Mo. 130. (5) But the judgment in the Heckman v. Robinson and Lambeth case was rendered without a trial, by consent, upon a compromise, as appears by the recitals in the judgment. It has been held that such a judgment is not at all binding on one who was an actual party in the action and who did not affirmatively consent to the compromise. If not binding on a nonconsenting party, can it be for any purpose binding on some one who was not a party at all? Murree v. Town, 65 S.W. 118; Lawrence, etc., v. Jonesville, 138 U.S. 552; Cathcart v. Foulke, 13 Mo. 561.
James Booth and Ryors, Vosholl & Monroe for respondent.
(1) The petition, attacked by objection to the introduction of any evidence, is good. Rodgers v. Insurance Co., 186 Mo. 255. At least the petition is tantamount to a cause of action defectively stated, and is not a showing of a defective cause of action. Water Co. v. City of Aurora, 129 Mo. 584. (2) In matters of contract where there is a joint undertaking the law raises a promise of contribution. Lebeaume v. Sweeney, 17 Mo. 157. Evidence being introduced tending to show appellant had due notice of the Heckman claim and suit and appellant remaining silent, offering no contradictory evidence, the evidence offered becomes conclusive. Donor v. Ingram, 119 Mo.App. 158. Unnecessary to charge eviction if grantors never had title at time of making deed. Rawle on Covenants for Title (4 Ed.), p. 154; Murphy v. Price, 48 Mo. 250. (3) Upon the facts pleaded and shown by the evidence, the appellant and the respondent and one S. M. Lambeth were not, strictly speaking, partners, but were engaged in a joint enterprise, to-wit, buying and selling a certain tract of land, the title to which was of record in the name of appellant alone. The principles of law governing joint ventures are applicable in this case. Seehorn v. Hall, 130 Mo. 257; Wetmore v. Crouch, 150 Mo. 671; Dorwartz v. Ball, 71 Neb. 173; Clark v. Mills, 35 Kan. 393; Ledyard v. Emerson, 140 N.C. 288; Whetstone v. Shaw, 70 Mo. 575; Donovan v. Barnett, 27 Mo.App. 461; Baum v. Stephenson, 133 Mo.App. 201. (4) A judgment by consent is binding as res judicata, as any other judgment. Freeman on Judgments, sec. 30, note I.
The amended or substituted petition upon which this case was tried alleges that plaintiff, one S. M. Lambeth, and the defendant here, A. J. Seay, on the 22d of November, 1890, were equal partners in a large tract of land in Osage county, Missouri, acquired by them by purchase from one D. A. Waters, administrator of one G. W. Pryor, deceased, each of these parties contributing in equal parts to the purchase thereof; that the purchase was made for the purpose of sale of the land to others for an anticipated profit, and that to facilitate such sales as were hoped to be made, title to the land was taken in the name of the defendant Seay; that afterwards these three parties sold and conveyed a large part of the land to one C. L. Heckmann for a large consideration in money to them paid, all three of the owners joining in the deed of conveyance to Heckmann; that included in the tract sold to Heckmann was a tract of eleven and seventy-three hundredths acres described; that on taking possession of the land so purchased and conveyed to him by these parties, Heckmann found that his grantors never at any time had title to these eleven and seventy-three hundredths acres or any part thereof "as promised him," and that thereupon Heckmann instituted "his proper suit in the circuit court of Osage county, Missouri, the warranting of title in said deed of conveyance to him as aforesaid by proper petition against the said Thos. J. Robinson and the said S. M. Lambeth to recover the sum of $ 1500 for his damages," which he estimated to be the fair value of the eleven and a fraction acres conveyed to him, "so to him warranted by the said Thos. J. Robinson, S. M. Lambeth and A. J. Seay;" that such proceedings were had in that suit as resulted in a judgment against plaintiff and Lambeth for the sum of $ 300; that Seay, although not a party to the suit brought by Heckmann, had full knowledge and was kept informed of the pendency and progress of the suit, of its nature and of the claim of Heckmann and of the steps taken by plaintiff and Lambeth to defend against the suit; that during the entire pendency of the suit, Seay was a nonresident of the State of Missouri, and that in defending the suit Robinson and Lambeth were put to great expense and trouble and compelled to hire an attorney and to pay him a large sum of money, to-wit, $ 100; that as the final result of the suit Robinson and Lambeth, in August, 1894, paid out in all the sum of $ 400, incurred, that is to say, $ 300 on account of the judgment, "and $ 100 fee for their attorney representing said Robinson and Seay in said suit;" that immediately thereafter Robinson and Lambeth notified Seay by letter of the ultimate result of the litigation and of the payment by them of the money above mentioned, to whom paid and for what reason, and demanded of Seay that he pay back to them one-third part thereof; that finding their demands unavailing and that Seay would not pay this one-third, Lambeth assigned to Robinson all of his right, interest, etc., in and concerning the demand against Seay who instituted this action against Seay in the circuit court of Franklin county, in 1895, returnable to the September, 1895, term, the defendant Seay then being found in the county and duly served. It is further charged in this substituted petition--substituted for one filed in 1895, but lost, hence the averments here of matter occurring after that suit was instituted--that ever since January, 1895, defendant Seay had and now has in his possession the sum of $ 113.33, "which is justly in good conscience due plaintiff; that they were partners as regards the land purchased from D. A. Waters, as stated herein, and in the land so sold to W. L. Heckmann; that by the deed and conveyance to W. L. Heckmann there was occasioned a net loss to the partnership of $ 400, which should in conscience be borne by the parties equally." Judgment is demanded for one-third of this with interest from the 25th of April, 1895, at the rate of six per cent per annum, and costs.
The answer is a general denial.
The trial was before the court, a jury being waived, and on plaintiff first offering evidence in the case, defendant's counsel objected to the introduction of any evidence on the ground that the petition fails to state facts sufficient to constitute a cause of action. This being overruled, exception was duly saved.
Plaintiff then introduced a deed from Waters administrator of Pryor, of date 28th of February, 1890, conveying a large tract of land to A. J. Seay. The deed is in the ordinary form of an administrator's deed. It was objected to by counsel for defendant because he could not identify by the deed the land described in the petition--could not find the eleven and a fraction acres described in the petition as forming part of the land included in the deed. The court ruled that the deed could go in subject to the objection, defendant excepting. Plaintiff then offered in evidence a deed of date September 14, 1882, from G. W. Pryor to one Leimkuehler. This deed is a quitclaim and describes, as we understand, eleven and a fraction acres. Although the deed from Pryor's administrator was to Seay alone, all three of the owners, "partners" in ownership, it is averred, that is Lambeth and wife, Robinson and wife, of Osage county, and the defendant Seay, then of the territory of Oklahoma, joined in a deed to Heckmann for 251 acres, more or less, of land, the land in section 11, township 43, range 7. This deed was offered in evidence by plaintiff. It is in form a statutory general warranty deed and was duly signed and acknowledged by all...
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