Whitehill v. Lowe

• Decision Date: 27 July 1894
• Docket Number: 461
• Citation: 10 Utah 419,37 P. 589
• Parties: WILLIAM H. WHITEHILL, APPELLANT, v. WILLIAM LOWE, ADM'R, AND OTHERS, RESPONDENTS. [1]
• Court: Utah Supreme Court

37 P. 589

10 Utah 419

WILLIAM H. WHITEHILL, APPELLANT, v. WILLIAM LOWE, ADM'R, AND OTHERS, RESPONDENTS. ^[1]

No. 461

Supreme Court of Utah

July 27, 1894

APPEAL from the District Court of the Third Judicial District. Hon Charles S. Zane, Judge.

Action by William H. Whitehill against William Lowe, administrator of the estate of George A. Meears, deceased, Walker Brothers and the Meears Mining Company, defendants, to enforce the specific performance of a contract between plaintiff and defendant Meears--to compel defendants to transfer to plaintiff certain shares in the Meears Mining Company. From an order and judgment sustaining a demurrer and dismissing the complaint, plaintiff appeals.

Affirmed.

Mr Gerald G. P. Jackson, for appellant.

First--A complaint is not demurrable upon the ground that it does not state facts sufficient to constitute a cause of action, if in fact, upon the cause of action stated, the plaintiff would be entitled to relief either in law or equity. Grain v Aldrich, 38 Cal. 514. Second--Walker Brothers are not sued individually but as officers of the corporation. It is true they are mentioned as individuals in the caption of the complaint. The caption of the complaint, however, is not a part thereof. Jackson v. Ashton, 8 Pet. 148. As officers of the corporation they are properly joined. The relief sought is an injunction restraining the transfer of the stock and the subject of the controversy being in their control and custody, the process of the court should run against them. Jones v. Bolles, 9 Wall. 364; Dewing v. Perdecaries, 96 U.S. 193; Mallow v. Hinde, 12 Wheat. 193; Mitford and Tyler, Eq. Pr. 40, 151. Equity requires all to be made parties whose presence is necessary for a final end of litigation. McPherson v. Parker, 30 Cal. 456; Wilson v. Castro, 31 Cal. 420; Grain v. Aldrich, supra. Third--For a bill to be demurrable on the ground that several causes of action have been improperly joined, there must be two elements: 1. The different grounds of suit or causes of action must be wholly distinct. 2. Each ground must be sufficient as stated to sustain a bill in equity.

If they arise out of one transaction, or series of transactions forming one course of dealing, and all tending to one end, if one connected story can be told of the whole, the objection does not apply. Story Eq. Plead. §§ 271, 271a, 271b; Wilson v. Castro, 31 Cal. 420; Salvidge v. Hyde, 5 Maddock, 138; Boyd v. Hoyt, 5 Paige, 78; Campbell v. Mackay, 1 Myl. & C. 603. The causes of action must be of an entirely different nature. Wilson v. Castro, supra.

Fourth--The complaint is not ambiguous, unintelligible or uncertain, because plaintiff is relying upon the whole of the agreements and incorporation set forth as one continuous and the same transaction. Fifth--Plaintiff's claim is not barred by the statute. The agreement to incorporate gave the defendant Meears only an inchoate right against the owners of the property until the incorporation was formed. There was then nothing for which an action would lie until the incorporation, which took place upon the 15th of October, 1890. The action was brought upon the 3d day of October, 1892, within two years. 2 Comp. Laws 1888, § 3145.

Mr. Thomas Adams, for respondent William Lowe, administrator, etc.

Messrs. Marshall & Royle, for respondents Walker Brothers and the Meears Mining Company.

MINER, J. MERRITT, C. J., and BARTCH and SMITH, JJ., concur.

OPINION

MINER, J.

This action was brought by appellant, by bill in equity, in the Third Judicial District Court of the territory of Utah, upon the 3d day of October, 1892, to compel the transfer of certain shares of mining stock. The plaintiff, by his complaint, alleged a verbal agreement, in 1883, with the owners of a certain mining property situated in Park City, Summit county, territory of Utah, and more particularly in the Uintah mining district, in said county and territory, which property was known at that time (1883-84) as the Morgan group of mines, by which agreement he (the appellant) was to secure and bring about the incorporation of a company to operate the property; that, in accordance with the terms of that agreement, the appellant introduced the owners of said property to the defendant and respondent Meears, who verbally agreed with the plaintiff to share with him in any benefits and profits that might accrue from the transaction.

In consequence of the agreement with Meears and the introduction of the owners of the aforesaid property to him, the owners of that property contracted in February, 1884, to convey it to the said Meears, for the purpose of incorporating a company to operate the mines, and the performance of the conditions of this last agreement was guaranteed by the firm of Walker Bros., a partnership of capitalists, of which the defendant J. R. Walker was a member; that thereafter, for a number of years, there was considerable litigation touching the title to said property, the contract to convey to Meears was in abeyance, and the conditions as to the incorporating a company to operate the property were not complied with or executed until the termination of the legal proceedings, on or about the 15th day of October, 1890, when the incorporation now known as the Meears Mining Company was formed, to operate the property for which the defendant Meears had obtained the contract to convey from the owners thereof. The plaintiff further alleged that the contract for conveyance obtained from the owners of the property had been obtained and procured by said Meears in his own name, to the exclusion of the plaintiff, without the knowledge of the plaintiff, and during the absence of the plaintiff from the territory of Utah; that, after the said incorporation, the defendant Meears had been assigned 31,625 shares of the capital stock of said incorporation for services in promoting the incorporation, which shares Meears retained in his own name, and has not transferred to the plaintiff one-half thereof, for which transfer the plaintiff brought this action, claiming said stock on account of services and expenses by him rendered in litigation, etc.

The defendants demurred to the bill. The court below sustained the demurrer, and dismissed the action. The plaintiff gave notice that he would stand by his bill, and subsequently gave notice of appeal, and now appeals to this court from the judgment and order of the court below, sustaining the demurrer and dismissing the action, and relies upon the following errors for reversal; (1) The court erred in sustaining the demurrer upon the ground that "said complaint does not state facts sufficient to constitute a cause of action." (2) The court erred in sustaining the demurrer upon the ground "that there is a misjoinder of parties defendant, in this: that said Joseph R. Walker and Samuel F. Walker, as individuals and as officers of said Meears Mining Company, and said Meears Mining Company are joined as defendants in said action with said defendant Meears, when there is no privity of contract between them and said plaintiff, nor are they or either of them subject to, or in any wise responsible for, or interested in, said alleged agreement of said plaintiff and said defendant Meears." (3) The court erred in sustaining the demurrer upon the ground "that two causes of action have been improperly united and joined in one count in said complaint, and not separately stated as independent causes of action, to wit: First, a cause of action upon an alleged agreement with defendant Meears, based upon an alleged agreement with the said owners of said mining claims, set out in said complaint; second, a cause of action upon an alleged agreement with defendant Meears, made after the execution of, and based upon, the written contract set out in said complaint." (4) The court erred in sustaining the demurrer upon the ground "that the complaint is ambiguous, unintelligible, and uncertain in this, to-wit: Because it cannot be determined from said complaint upon which of said causes of action mentioned in subdivision three of this demurrer plaintiff is relying, or whether or not plaintiff is relying upon both of them." (5) The court erred in sustaining the demurrer upon the ground "that, as to the first agreement set up in said complaint between plaintiff and defendant Meears, the same is barred by the provisions of subdivision one of section 196 of the Code of Civil Procedure, and as to the agreement founded upon, or growing out of, or a part of, the contract in writing set out in...