State ex rel. Cockrum v. Southern

• Decision Date: 01 April 1935
• Docket Number: No. 18287.,18287.
• Citation: 83 S.W.2d 162
• Parties: STATE OF MISSOURI EX REL. VEIGH COCKRUM ET AL., RELATORS, v. HON. ALLEN C. SOUTHERN, JUDGE, ETC., ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

83 S.W.2d 162

STATE OF MISSOURI EX REL. VEIGH COCKRUM ET AL., RELATORS, v. HON. ALLEN C. SOUTHERN, JUDGE, ETC., ET AL., RESPONDENTS.

No. 18287.

Kansas City Court of Appeals. Missouri.

April 1, 1935.

Prohibition proceeding by State on relation of Veigh Cockrum and others against Allen C. Southern, Judge of Division No. 5 of the Circuit Court of Jackson County and another.

PRELIMINARY RULE QUASHED AND PERMANENT WRIT DENIED.

Alpha N. Brown for relators.

Charno & Drummond and Warren A. Drummond for respondents.

BLAND, J.

This is a proceeding wherein relators attempt to prohibit the Honorable Allen C. Southern, one of the judges of the Circuit Court of Jackson County and the Honorable Glenn Donaldson, a referee appointed by him, from proceeding further in a cause pending before said judge in which A.M. Dowell and J.M. Dowell, co-partners, doing business as Dowell Brothers, are plaintiffs and Veigh Cockrum, Hattie Cockrum and Beulah Cockrum, are defendants. Upon the filing of the petition for the writ in this court one of the judges thereof issued a preliminary rule. Respondents have made their return and relators have filed their motion for judgment on the pleadings.

The facts disclosed by the pleadings show that the respondent, Southern, after having entered a decree for an accounting in said cause appointed respondent, Donaldson, to take the same. After the entry of the decree relators filed motions for a new trial and in arrest of judgment, which were overruled. While these motions were pending the referee served notices of hearings and fixed the date for the same to commence at a time prior to the time the motions for a new trial and in arrest of judgment were ruled upon by the court. The motions were disposed of adversely to relators whereupon the referee commenced hearings pursuant to said notices. At this stage of the proceedings this application for a writ of prohibition was made. Relators filed, in the trial court, a demurrer to the petition, which was overruled, also a motion to make the petition more definite and certain, which was likewise overruled. The grounds for the demurrer were that the petition failed to state facts sufficient to constitute an action in equity against the defendants and that several causes of action were improperly united in the petition. The petition reads as follows:

"Plaintiffs for their amended cause of action, leave to file this amended petition having heretofore been granted by the court, state that now and at all the times herein mentioned, Veigh Cockrum has been conducting a general warehouse, drayage and merchandise distributing business under the style of Aaron Transfer Company in Kansas City, Missouri, and has in his charge a certain warehouse building located at 504 West Fifth Street in Kansas City, Missouri; that Kaw Valley Corporation is a Missouri Corporation but that the said Veigh Cockrum in reality and truth is the true owner of all the stock and assets thereof, and that Kaw Valley Corporation has duly made Veigh Cockrum its attorney in fact to transact all its business and to sign all papers and execute all contracts in its behalf, and that no officer or director thereof has any authority to sign or execute any paper or transact any business on its behalf.

"The plaintiffs are co-partners and for many years have operated and conducted their business of shipping cotton, with chief place of business in McKinney, Texas.

"That on or about March 15, 1932, plaintiffs entered into an agency contract with defendant Veigh Cockrum, by the terms of which Veigh Cockrum promised and agreed to act as agent of plaintiffs in the same and distribution of cotton and cotton linters. That by the terms of said agreement plaintiffs were to deliver cotton and cotton linters to Veigh Cockrum at points in Oklahoma and Texas and Cockrum should transport same or cause it to be transported to Cockrum's said warehouse, and that thereafter Cockrum would sell same and thereupon transport same to the purchasers thereof and Cockrum would thereafter collect the purchase price thereof and immediately remit the proceeds to plaintiffs, after deducting his fees, commissions and charges for said services. And Cockrum agreed to inform plain-at all times of the names of the purchasers of said cotton and linters and how much had been shipped to such purchasers, and the status of the accounts of such purchasers, and the amount of the stock of such cotton and linters on hand in such warehouse. That this is the only agreement or contract ever made or entered into between plaintiffs and defendants.

"That thereafter plaintiffs delivered many bales of cotton and linters to said Cockrum and caused many hundreds of bales thereof to be sent to said warehouse. That Cockrum sold and distributed a portion of said cotton and linters and collected the purchase price of same but that said Cockrum has remitted to plaintiffs only a portion of the amounts so collected and has fraudulently converted and appropriated to his own use the proceeds thereof and refuses to turn over same to plaintiffs.

"That Cockrum has some of said cotton and linters on hand in his said warehouse, but plaintiffs have no knowledge of the amount thereof.

"That Cockrum refuses to account to plaintiffs for any part of said cotton or linters. That plaintiffs have no knowledge of the names of the parties who have purchased any of said cotton or linters and who are indebted yet for same. That if Cockrum collects any of said outstanding accounts he will convert the proceeds thereof to his own use and secrete same where plaintiffs cannot locate same.

"That plaintiffs have requested an accounting of their said business relations with Cockrum and he fails and refuses to render any accounting to them.

"That plaintiffs have no plain, adequate or complete remedy at law.

"That Kaw Valley Corporation and Veigh Cockrum, as its attorney in fact, claim some interest in said cotton and linters and said outstanding accounts and indebtedness, the source of which claim plaintiffs have no knowledge; that plaintiffs have never had any business dealings with Kaw Valley Corporation to their knowledge. That defendant, Hattie Cockrum claims to be the owner of all the assets of the Kaw Valley Corporation and claims to be doing business as a sole trader, under the name and style of Kaw Valley Corporation, and claims to have some interest in said cotton and cotton linters herein; that Beulah Cockrum claims some interest in Aaron Transfer Company and the subject-matter of this action, the extent and character of which is unknown to plaintiffs; that all of said defendants are insolvent and a money judgment cannot be collected against them.

"Wherefore, plaintiffs pray for an injunction restraining defendants from moving or disposing of any cotton now in their possession by virtue of the said relations between plaintiffs and Veigh Cockrum; that defendants be restrained from collecting and receiving payment for any of said cotton or linters now unpaid; and that they be restrained from endorsing and cashing any checks or drafts in payment of any of said cotton; that defendants may be compelled to account to plaintiffs for any and all of such cotton or linters and to furnish names of purchasers thereof, with amounts paid and unpaid; and that plaintiffs recover judgment for any amounts found to be due and owing them from defendants by reason of the premises, and for such other and further relief that may seem just and proper and for their costs."

It is urged that the petition does not state a cause of action in equity for the reason that it is claimed that it shows on its face that plaintiffs have an adequate remedy at law and, if any cause of action is stated, it is an action at law. In support of this contention relators, among other authorities, cite the cases of Dahlberg v. Fisse, 40 S.W. (2d) 606; Palmer v. Marshall, 24 S.W. (2d) 229, and Sandwich Mfg. Co. v. Bogie, 298 S.W. 56.

We are unable to agree with the contention of the relators. The petition undoubtedly discloses that plaintiffs have a cause of action against the relator, Veigh Cockrum, for an equitable accounting. While the mere relationship of principal and agent affords no ground for an equitable accounting (2 C.J., p. 888), under the allegations of the petition it is apparent that the relationship between plaintiffs and defendant, Veigh Cockrum, was more than a mere agency but was that of principals and factor. It is well settled that such a relationship is a fiduciary one and constitutes the factor a quasi-trustee for the principal and a suit in equity against the factor for an accounting may be brought when the facts warrant a suit for an accounting. [25 C.J., pp. 342, 400; Deming v. Webb, 76 Mo. App. 329; Foley v. Hill, Eng. Repts. Full Reprint, 1002, 1005; Jordan v. Underhill, 86 N.Y.S. 620; Coffin v. Craig, 89 Minn. 226; Morris & Co. v. Whitley, 183 Fed. 764; Phillips v. Birmingham Ind. Co., 161 Ala. 509; Hall v. McKeller, 155 Ala. 508; Graham v. Graham, 171 Mich. 307.]

Equitable jurisdiction over matters of account is said to be based upon three grounds, to-wit: The need of a discovery, the complicated character of the accounts and the existence of a fiduciary or trust relationship. Neither the need of discovery or the complicated character of the accounts, alone, constitute ground for equitable relief in this State. [Vogelsong v. Wood Fibre Plaster Co., 147 Mo. App. 578; Johnston v. Pump Co., 274 Mo. 414, 423.] However, the existence of a fiduciary or trust relation is a basis of equitable jurisdiction in this State. [Frost v. Redford, 54 Mo. App. 345, 354. See, also, 25 C.J., p. 400; 1 C.J., p. 621.] "Courts of equity have jurisdiction to compel an accounting, although the complainant has an adequate remedy at law where fiduciary relations exist" (1 R.C.L., p. 224; 1 C.J., pp. 614, 621); "and it is no objection that the action at law sounding in damages may be brought for the...