Vogelsong v. St. Louis Wood Fibre Plaster Co.

• Decision Date: 22 March 1910
• Citation: 147 Mo. App. 578,126 S.W. 804
• Parties: VOGELSONG v. ST. LOUIS WOOD FIBRE PLASTER CO. et al.
• Court: Missouri Court of Appeals

126 S.W. 804

147 Mo. App. 578

VOGELSONG v. ST. LOUIS WOOD FIBRE PLASTER CO. et al.

St. Louis Court of Appeals. Missouri.

March 22, 1910.

Rehearing Denied April 5, 1910.

1. ACTION (§ 25) — BILL — ABOLITION UNDER CODE.

The old form of a bill in equity is not in use in Missouri; Rev. St. 1899, § 592 (Ann. St. 1906, p. 612), providing that plaintiff's first pleading is the petition, and prescribing what it shall contain.

2. JUDGMENT (§ 252) — RELIEF — PRAYER FOR GENERAL RELIEF.

Rev. St. 1899, § 592 (Ann. St. 1906, p. 612), requires the petition to contain a demand for the relief to which plaintiff supposes himself to be entitled, and, if the recovery of money is demanded, to state the amount thereof, or facts which will enable the amount to be ascertained. Section 776 provides that in any other case than default the court may grant plaintiff any relief consistent with the case made by him and embraced within the issues. Held, that where the petition in an equity case contained a prayer for general relief to which the facts alleged entitled him, the court might disregard prayers for a discovery and accounting, and award plaintiff any other relief to which the facts alleged in the petition entitle him.

3. DISCOVERY (§ 3) — EQUITABLE ACTION — EXISTENCE UNDER CODE.

A bill of discovery, as known to ancient chancery practice, is not available since the adoption of the Code; its provisions for taking depositions obviating the necessity of a bill of discovery.

4. ACCOUNT (§ 12) — RELIEF — EQUITABLE ACTION — GROUNDS.

An action for accounting will not lie in equity unless founded upon some equitable ground of relief.

5. TRUSTS (§ 94½) — CONSTRUCTIVE TRUSTS — SUFFICIENCY OF ALLEGATION.

The petition alleged: That plaintiff was the owner of a patented machine for making wood fibre plaster and leased the right to use one of such machines in a certain territory to W., who acted as trustee for the S. corporation, thereafter organized, upon certain royalties and other considerations, and that the lessee agreed not to operate the machine outside the territory named, or sublease it to any parties operating outside such territory, and not to use any other machine in such territory, the lease, which was witnessed by certain individual defendants, to be void at plaintiff's option if the lessee violated its terms; that the individual defendants referred to were officers of and had the control of the A. Company, a foreign corporation; that the S. Company and the other defendants have only partly performed the contract, in that "it has paid your petitioner" a certain sum as agreed, but "that the said defendants" owned and controlled the A. Company, and also became the owners and controllers of the S. Company, which was organized by defendants "with a fraudulent intent to injure" plaintiff and with the intention of abandoning that company thereafter; that afterwards another wood paper machine was patented, several of which were purchased by the A. Company and used, in violation of the lease, when the S. Company was abandoned by the individual defendants above referred to, with the knowledge and consent of W. and another, and the machine leased to the S. company by plaintiff was taken by the defendant A. Company and operated; that the A. Company and individual defendants were operating machines in towns out of the territory named in the lease; and that large sums have become due plaintiffs thereby. The prayer is that the A. Company be decreed trustee for the S. Company and, with the other defendants, be required to account to plaintiff for royalties due. No relief was asked against the S. Company, and there was no allegation that the lease was assigned to the A. Company by the S. Company, or that the former company had ceased business, and no specific allegation that the S. Company transferred to it the leased machine. Held, that the facts alleged did not establish a constructive trust against the A. Company or the individual defendants; the mere fact that the same persons were interested in the two companies as stockholders or officers, even if that were alleged, not of itself being sufficient to charge one company with the acts of the other.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by John W. Vogelsong against the St. Louis Wood Fibre Plaster Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This is a suit in equity, commenced in the circuit court of the city of St. Louis by plaintiff against the St. Louis Wood Fibre Plaster Company, the Acme Cement Plaster Company, Samuel Lazarus, S. A. Walker, Jas. R. Dougan, Gordon Willis, and F. P. Hunkins. The second amended petition in the cause avers: That the plaintiff was the owner of a patented device called the "Vogelsong wood fibre machine," a device intended for reduction of wood to fibre, which was to be used in making wood fibre cement plaster; it being averred that this was the first machine invented for reducing wood to fibre and was the only one on the market. That, in order to secure the means of making wood fibre cement plaster, the defendant Willis, as trustee of the St. Louis Wood Fibre Plaster Company, but which company was not at that time organized as a corporation, on the 2d of December, 1901, entered into a contract with the plaintiff, called therein "lessor," Willis being designated as "lessee," whereby the lessor, in consideration of the rental to be paid as thereinafter set out, and in consideration of the faithful performance by the lessee, or his assigns, of each and every one of the agreements mentioned, leases unto the lessee or his assigns, "one Vogelsong wood fibre machine," manufactured under patents owned and controlled by plaintiff, the lessor agreeing to grant to the lessee or his assigns the right to use the machine in certain designated territory during the life of the letters patent to be issued on the machine, and the lessor agreeing not to sell, rent, lease, or in any manner permit the use of the machine in the territory described other than to the lessee or his assigns, to furnish the lessee or his assigns an additional machine or machines when the manufacturing business of the lessee requires, and various other agreements not now necessary to note.

The lessee on his part agreed to accept the conditions of the contract; to pay the lessor a royalty of 25 cents per neat ton for the first 2,000 tons of plaster or other mixtures manufactured or produced from or by each and every machine, and 12½ cents per neat ton for all quantities produced thereafter; to pay the lessor upon receipt of the railroad company's bill of lading of said machine, consigned to St. Louis or such other point as may be designated by the lessee, the sum of $500, for which the lessee is to receive credit as advance payment on the royalty to be paid as in the lease provided, keeping the machine in good repair and returning it to the lessor at the expiration of the lease in good condition; if the product of the machine is marketed as a commodity, then the lessee is to pay the lessor a royalty of 15 cents per hundred pounds of wood fibre thus sold; not to operate the machine outside of the territory before mentioned or to sublease the machine to any parties operating outside of the territory; to diligently push the business in all the territory mentioned in every reasonable and consistent manner and to lease additional machines from said lessor or his assigns as fast as the business requires, it being mutually agreed between the parties "that in consideration of the terms of this contract * * * said lessee shall not use or operate, during the life of this contract, any other machine or machines within said territory, for the reduction of wood to fibre, save and except the Vogelsong wood fibre machine." It was further agreed that "a failure upon the part of said lessee to comply with the terms of the contract shall void the same at the option of the lessor, and authorize said lessor to enter upon the premises and remove the machine therefrom, and to recover from lessee any payment then due under this contract," the lessor to be allowed to lease or operate the machines within the territory designated if the lessee neglect to occupy it, and that the lessee was to employ the lessor for a period of three months from the date of the contract at $150 per month and reasonable expenses, it being stipulated that the terms of the contract of lease should extend and become binding upon the executors, administrators, legal representatives, and assigns of the lessor and upon the successors or assigns of the lessee. This contract of lease or license was signed by the plaintiff and by Gordon Willis, trustee for the St. Louis Wood Fibre Plaster Company, and witnessed by the defendants Lazarus, Walker, and Hunkins.

It is further averred in this petition that the St. Louis Wood Fibre Plaster Company was afterwards organized and began to make wood fibre cement plaster in pursuance of the terms of the agreement, that the defendants Lazarus, Walker, and Dougan had at all times the controlling interest in the capital stock of the Acme Cement Plaster Company, a corporation organized under the laws of the state of Illinois, that they still hold said interest, that Lazarus is president, Walker vice president, and Dougan secretary and treasurer; and it is stated on information and belief that Hunkins and Walker are stockholders in the Acme Cement Plaster Company and its selling agents, and that the same is operated and directed by Lazarus, Walker, and Dougan. Averring performance of his part of the contract, plaintiff, describing himself in the petition as petitioner, says that the St. Louis Wood Fibre Plaster Company and the other defendants have carried out the contract only in part, in that "it has paid your petitioner the sum of $500, as provided for advanced payments on royalties upon the receipt of the bill of lading of the machine;"...