Wilson v. Airline Coal Co.

• Decision Date: 14 February 1933
• Docket Number: No. 41593.,41593.
• Parties: WILSON ET AL. v. AIRLINE COAL CO. ET AL.
• Court: Iowa Supreme Court

215 Iowa 855

246 N.W. 753

WILSON ET AL.

v.AIRLINE COAL CO. ET AL.

No. 41593.

Supreme Court of Iowa.

Feb. 14, 1933.

Appeal from District Court, Wapello County; R. W. Smith, Judge.

Action in equity to enjoin the violation of an alleged written contract. Defendant's motion to dismiss the petition was sustained, and judgment entered against the plaintiffs for costs. Plaintiffs appeal.

Affirmed.

UTTERBACK, J., dissenting.

John T. Clarkson, of Albia, for appellant.

Jones & White, of Ottumwa, for appellees.

STEVENS, Justice.

This is an action in equity brought to enjoin the violation of an alleged written contract. The contract, which is signed by “Frank Wilson, president, U. M. W. of A.,” and the “Airline Coal Co., by J. H. Genochio,” is quoted in full a little later in this opinion. The plaintiffs are the alleged trustees of an express trust, and bring this action as members of an unincorporated society for the benefit of others similarly situated and interested who are too numerous to bring before the court, District No. 13, U. M. W. of A., and Local Union No. 152 of District No. 13, and certain former employees of the appellee Airline Coal Company in their own behalf and in behalf of others similarly interested and situated. The petition is lengthy, and contains all of the customary allegations of a petition in such cases. The contract, the violation of which appellants seek to have enjoined, is as follows:

“Agreement.

Aug. 18, 1931.

It is agreed between District No. 13, U. M. W. of A., and the Airline Coal Company of Ottumwa, Iowa, that the above Coal Company shall pay the wage scale as specified and operate under the terms and conditions of the Des Moines agreement which expires April 1, 1933. Frank Wilson, President, U. M. W. of A. Airline Coal Co., by J. H. Genochio.”

The motion to dismiss, which was sustained by the court, is based upon Section 11130 of the Code of 1931 and challenges the right of the appellants to maintain this action upon many grounds, among which are the following: That there is both a misjoinder and nonjoinder of parties plaintiff; that the action is not prosecuted in the name of the real parties in interest, and that appellants have no authority to prosecute the action; that they are not entitled to the relief sought; that they are incompetent as a voluntary association to maintain the action; that the alleged contract is void and unenforceable, for the reason that it is not supported by a consideration, is wanting in mutuality, and for various reasons incapable of being specifically enforced.

The argument of counsel takes a wide range and covers numerous subjects either not in reality involved or, because of the conclusion reached upon the merits of the petition, need not be discussed or decided at this time. Our discussion will be limited strictly to the specific pronouncements presented herein. Numerous of the questions discussed are of grave and far-reaching importance, and should abide decision until a case has arisen in which they are directly and necessarily involved. Much space is devoted in the argument of appellants to collective bargaining contracts. Many authorities are cited in the briefs. As, in the opinion of the court, the decision must be rested upon the interpretation of the contract in controversy and the mutual rights of the parties thereunder, we shall, as stated above, limit our discussion to such matters as properly arise at this point. For this purpose we shall, without deciding or expressing any opinion on the subject, assume that there is neither a misjoinder nor nonjoinder of the parties plaintiff and that some of the parties named have a right to maintain this action.

With the foregoing preliminary statement, we pass at once to the consideration of the questions raised and which we deem controlling and decisive in the premises.

[1] I. It will be observed, or should be stated as one of the ultimate facts alleged in the petition, that District No. 13, U. M. W. of A., territorially includes the state of Iowa and has about 9,000 members. Local Union No. 152 is located at or near the city of Ottumwa, and has approximately 116 members. It is not alleged that Frank Wilson, president of the U. M. W. of A., is a member of the local union. The contract in suit is not, by its terms, a contract of employment. Apparently, its main purpose is to obligate appellee to pay a certain scale of wages and to operate its coal mines under the terms and conditions of the so-called Des Moines agreement. It has long been settled in this state, and it is the rule in other jurisdictions, that, in the absence of statute authorizing it to do so, voluntary unincorporated associations may neither sue nor be sued. Nightingale v. Barney, 4 G. Greene, 106;Pipe v. Bateman, 1 Iowa, 369;Drake v. Board of Trustees, 11 Iowa, 54;Steamboat Pembinaw v. Wilson, 11 Iowa, 479;Lewis v. Tilton, 64 Iowa, 220, 19 N. W. 911, 52 Am. Rep. 436;Arts v. Guthrie, 75 Iowa, 674, 37 N. W. 395;Westbrook v. Griffin, 132 Iowa, 185, 109 N. W. 608;Presbyterian Church v. Harken, 177 Iowa, 195, 158 N. W. 692;Marshalltown, etc., Ins. Ass'n v. Bendlage, 195 Iowa, 1200, 191 N. W. 97, 193 N. W. 448;Presbyterian Church of Paralta v. Johnson, 213 Iowa, 49, 238 N. W. 456;Herald v. Glendale Lodge No. 1289, B. P. O. E., 46 Cal. App. 325, 189 P. 329;United Brotherhood of Maintenance of W. Employees, etc., v. Kennedy, 13 Del. Ch. 106, 115 A. 587;Brown v. United States, 276 U. S. 134, 48 S. Ct. 288, 72 L. Ed. 500;Adams v. Richardson, 268 Mass. 78, 167 N. E. 254;Newton County Farmers' & F. G. Exch. v. Kansas City So. Ry. Co. (Mo. App.) 2 S.W.(2d) 125.

Statutes authorizing actions in the name of such associations have been enacted in some states. In Ohio, they are presumed to be partnerships. Seasongood & Mayer v. Riddle, 18 Ohio App. 88.

[2] It must be held that neither District No. 13, U. M. W. of A., nor Local Union No. 152 has capacity, in the name thereof, to sue or to maintain this action. Having neither capacity to sue nor be sued, it has sometimes been held directly or inferentially that unincorporated societies are without power to contract. Davison v. Holden, 55 Conn. 103, 10 A. 515, 3 Am. St. Rep. 40;Colt v. Hicks (Ind. App.) 179 N. E. 335;Kansas Life Ins. Co. v. First Bank of Truscott (Tex. Civ. App.) 47 S.W.(2d) 675;Weber v. Nasser (Cal. App.) 286 P. 1074;Burnetta v. Marceline Coal Co., 180 Mo. 241, 79 S. W. 136. The point here suggested will be considered only in the determination of the scope and effect of the contract involved. Is the contract supported by a consideration? No monetary consideration or other thing of value passed to any one under the terms of the agreement. Impliedly at least, appellee was on August 18, 1931, engaged in the operation of one or more coal mines near Ottumwa, Iowa. The alleged agreement is not between appellee and any employee or employees thereof, nor is the local union a party thereto.

[3][4][5] Mutual promises may constitute a consideration for, and will support, a contract. It is obvious that nothing of value passed from either Wilson or the organization represented by him to appellee that amounted to a consideration. The obligations assumed are all on the part of appellee. The promise is to pay the wage scale specified and to operate under the terms and conditions of the Des Moines agreement.

It may be assumed that, if the promise was kept and maintained, it would operate to the direct advantage of appellee's employees, and, generally, to the indirect advantage of the members of District No. 13, U. M. W. of A. Nothing is, however, promised by or on behalf of District No. 13. No member of the organization is thereby bound to accept employment from appellee as miners or for other purposes at the wage scale designated. It is not sufficient in this connection that the agreement is characterized as a collective bargaining agreement. These agreements are intended to serve and advance the welfare and comfort of those engaged in coal mining and other forms of industry and to stabilize employment and to contribute to the peaceful adjustment and settlement of controversies between employees and employers. The object is proper and commendable. Contracts of this character must, however, to be valid, be supported by a consideration. Many cases relating to collective bargaining contracts are cited in appellants' brief. Without exception, the contracts involved were of a different character from that before us, and were clearly supported by a consideration. A citation of the following cases relied upon by appellants will suffice to illustrate this point: Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260, 157 N. E. 130, 131;Goldman v. Cohen, 222 App. Div. 631, 227 N. Y. S. 311;Cross Mountain Coal Co. v. Ault, 157 Tenn. 461, 9 S.W.(2d) 692;Gregg v. Starks, 188 Ky. 834, 224 S. W. 459;Maisel v. Sigman, 123 Misc. 714, 205 N. Y. S. 807;Hitchman Coal & C. Co. v. Mitchell, 245 U. S. 229, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461;Ribner v. Racso Butter & Egg Co., 135 Misc. 616, 238 N. Y. S. 132;H. Blum & Co. v. Landau, 23 Ohio App. 426, 155 N. E. 154.

It seems to us that the contract in question imports no consideration. If specific performance thereof would be possible in equity and it were sought by appellee, what relief could the court give it? In other words, is there anything District No. 13 or its members could do that could, in equity or law, be treated as a violation of the contract? Under it no obligation whatever is assumed by appellants, so that there is obviously neither pecuniary consideration or mutual promises to support the agreement. It is our conclusion that the motion to dismiss upon the ground that the contract in controversy is not supported by a consideration was proper.

[6][7][8] II. A further ground of the motion to dismiss is that the contract is without mutuality. Much that has already been said bears directly upon this question....