Sugarman Iron & Metal Co. v. Morse Bros. Machinery & Supply Co.
| Decision Date | 03 May 1927 |
| Docket Number | 2772. a1 |
| Citation | 255 P. 1010,50 Nev. 191 |
| Parties | SUGARMAN IRON & METAL CO. et al. v. MORSE BROS. MACHINERY & SUPPLY CO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; George A. Bartlett Judge.
Suit by the Sugarman Iron & Metal Company and another against the Morse Bros. Machinery & Supply Company. From an order denying an injunction and the appointment of a receiver, plaintiffs appeal. Reversed with directions.
Brownstone & Goodman, of San Francisco, Cal., and Platt & Sanford, of Carson City, for appellants.
Price & Hawkins, of Reno, for respondent.
This matter is before the court on an appeal from an order refusing an injunction and the appointment of a receiver.
The complaint alleges that Sugarman Iron & Metal Company is a California corporation, and that the defendant is a Colorado corporation; that for some time past the said corporations had engaged in several joint adventures and enterprises whereby both corporations had advanced means and money for the purchase and exploitation in their joint account of various and divers industrial plants for salvage purposes that thereafter one George G. Morse, the president of the defendant company, discussed with plaintiff Davidson and with one Meyer Sugarman, the president of plaintiff corporation the advisability of entering into a joint enterprise for the purchase of that certain mill, milling equipment, tools, accessories, etc., of the Comstock Merger Mines, Inc., and of the Comstock Milling Corporation, situated in Storey county, Nev.; that prior thereto the plaintiffs had visited said properties and had thoroughly investigated the same and thereafter requested the said Morse, who was in Denver, Colo., to come to Reno, Nev., for the purpose of joining with them in a joint enterprise for the purchase, exploitation, and subsequent sale of the property mentioned.
That negotiations thereafter took place between the said parties at Reno, Nev., and, as a result thereof, it was agreed among the parties named that they visit the properties mentioned and they did on the following day visit the same; that on the day thereafter it was agreed among the said Morse, acting for and on behalf of the defendant company, and the said Sugarman, acting for and on behalf of the Sugarman Iron & Metal Company, and the said Davidson, in his own behalf, that they would jointly purchase said property for and on the joint account, in equal shares and interest as to investment, loss, and profit, of the said parties; that it was further then and there agreed that the said Morse should go East for the purpose of entering into a contract of purchase of the said property, and that said contract of purchase should be entered into between the owners of said property and the defendant company, acting for and in behalf of the joint interest of the parties hereto; that thereafter, and on or about November 26, 1926, the said Morse entered into an agreement with the said Comstock Merger Mines, Inc., and the Comstock Milling Company to purchase and did purchase on behalf of the defendant company and the plaintiffs the property herein mentioned; that said contract and agreement of purchase was entered into in the name of the defendant company, but for the use and benefit of the parties hereto, in proportion and interest as above stated.
The complaint further states that the defendant has not disclosed to either of the plaintiffs the fact that said contract was entered into, but has willfully, deliberately, and fraudulently concealed said fact from the plaintiffs, with the express, deliberate, and fraudulent purpose of depriving plaintiffs of their just rights, benefits, share, and profits in and to said purchase, sale, handling, and exploitation of said property, and that the defendant has attempted and is attempting to dispose of parts of said mill and milling property for and on its own behalf, and has engaged employees actively to superintend and to carry on the work of dismantling, removing, and selling said property, and that it is the intention of said defendant to repudiate its agreement and understanding with the plaintiffs and to deprive them and each of them of any interest whatever in and to said contract and agreement and the property described therein.
It is further alleged that the defendant threatens to sell and to remove said property from the jurisdiction of the state of Nevada and to remove the proceeds thereof out of the state of Nevada, and to deprive these plaintiffs of any participation or voice therein and of any benefit or profit therefrom; that the defendant has in truth and in fact repudiated its agreement with the said plaintiffs and has excluded each and both of them from any and all participation therein in the present and future management, control, exploitation or sale of any part or portion of said property or from dealing or trading therein.
It is further alleged that the defendant has "deliberately, willfully, and fraudulently purchased said property as aforesaid with the willful, deliberate, and fraudulent intent then and there had to fraudulently deprive the plaintiffs of any right, title, or interest therein, and to fraudulently deprive them of the fruits and benefits thereof."
The complaint further alleges that the plaintiffs have tendered and offered to the defendant to perform all of the terms, covenants, and conditions of said sale, binding upon them, and to perform each and every part, covenant, or condition of the said contract and agreement, and that they have always been ready, willing, and anxious to so perform and are still ready so to do, and are ready and willing to submit to each, every, and all orders of the court with respect to any demand or duty to be performed by them, in the performance of any of the provisions and conditions of said sale.
The complaint further alleges that the defendant is engaged in dismantling and selling a part or portion of said mill, machinery, equipment, and accessories, to the great detriment, damage, and irreparable loss of the plaintiffs, and that, unless restrained, the defendant will continue to dismantle, dispose of, and sell said machinery, or will ship and remove the same from and out of the state and the jurisdiction of the court, and will prevent all funds, revenues, and moneys derived from the sale thereof from entering or coming within the state of Nevada.
The complaint further alleges that the only method whereby the rights and interests of the plaintiffs can be protected in the premises is through the appointment of a receiver.
The complaint concludes with a prayer that an order be issued requiring the defendant to show cause why it should not be restrained from selling or removing said property and for the appointment of a receiver, and for general relief.
A show cause order was entered upon the filing of the complaint, in response to which the defendant appeared both by answer and demurrer. The grounds of demurrer are: That the complaint does not state facts sufficient to constitute a cause of action; that it does not state facts sufficient to justify the appointment of a receiver, or for the issuance of a restraining order or injunction, or for any other extraordinary or equitable relief.
When the matter came on for hearing before the lower court, it was argued upon the questions raised by the demurrer, at the conclusion of which an order was made, from which we quote as follows:
"The court at this time renders its decision on defendant's demurrer to plaintiffs' complaint heretofore argued and submitted, and orders that on the prayer of plaintiffs for certain orders providing for the issuance at this time of a restraining order against defendant and the appointment of a receiver, the court denies said request."
After the appellants had filed their opening brief on appeal, a motion was made to dismiss the appeal, which was denied at the conclusion of the argument thereon. The matter was thereafter argued upon the merits and submitted. Thereafter and on April 20 counsel for respondent filed a petition for a rehearing on the motion to dismiss, and on April 25 filed a "supplemental brief," wherein additional reasons are urged as grounds for the dismissal...
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Sugarman Iron & Metal Co. v. Morse Bros. Machinery & Supply Co.
...County; George A. Bartlett, Judge. On motion by plaintiff to tax costs. Ruling of the clerk taxing costs affirmed. For main opinion, see 255 P. 1010. Brownstone & Goodman, of San Francisco, Cal., and Platt & Sanford, Carson City, for appellants. Price & Hawkins, of Reno, for respondent. SAN......