Zickel v. Knell

• Decision Date: 08 March 1948
• Docket Number: 40396
• Citation: 210 S.W.2d 59,357 Mo. 678
• Parties: William J. Zickel v. Otto A. Knell, Sr., Mrs. Otto Knell, Sr., Doing Business as O.A. Knell Company, Appellants
• Court: Missouri Supreme Court

210 S.W.2d 59

357 Mo. 678

William J. Zickel v. Otto A. Knell, Sr., Mrs. Otto Knell, Sr., Doing Business as O.A. Knell Company, Appellants

No. 40396

Supreme Court of Missouri

March 8, 1948

Rehearing Denied April 12, 1948.

Appeal from Circuit Court of City of St. Louis; Hon. F. E Williams, Judge.

Reversed and remanded (with directions).

Lee Fricke & Lee for appellants.

(1) It was error to deny appellants the right of equal protection of the law, and deprive appellants of their property without due process of law, in disregard and violation of the 10th and 22nd Sections of the Bill of Rights of the Constitution of the State of Missouri, and in disregard and violation of Article IV, Section 2, paragraph 1 of the Constitution of the United States, as spplemented by the 1st Section of the Fourteenth Amendment to the Constitution of the United States. Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86. (2) It was error to assume jurisdiction in equity on a money demand in a known amount with no allegations and no showing whatever of any ground for relief in equity or at law as it appears in the proof. Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Buckley v. Maupin, 344 Mo. 193, 125 S.W.2d 820; Wilson v. Hoover, 342 Mo. 1182, 119 S.W.2d 768; Myers v. St. Louis Structural Steel Co., 333 Mo. 464, 65 S.W.2d 931. (3) It was error to dismiss the counterclaim, because under the new code, filing the counterclaim was mandatory. Sec. 73, General Code for Civil Procedure; Fawkes v. Fawkes, 204 S.W.2d 132. (4) It was error to enter the judgment and decree which is without any competent evidence to support it, and contrary to the pleadings and proof. Miller v. Miller, 311 Mo. 110, 277 S.W. 922; State ex rel. Smith v. Joint, 344 Mo. 686, 127 S.W.2d 708; McFarland v. Gillioz, 327 Mo. 690, 37 S.W.2d 911; State ex rel. McCroy v. Bland, 355 Mo. 706, 197 S.W.2d 669.

Douglas H. Jones and Berthold, Jones & Bialson, for respondent.

(1) By their statements, agreements and conduct at the trial, the parties waived any rights to complain of the court's action in trying all issues. Patton v. Goodson, 183 S.W.2d 333. (2) Defendants were not deprived of their right to trial by jury. They were not entitled to a jury trial, as this was properly a proceeding in equity. Dryssen v. Union Electric Co., 295 S.W. 116; Bewes v. Buster, 341 Mo. 578, 108 S.W.2d 66; Blattel v. Stallings, 346 Mo. 450, 142 S.W.2d 9; Vannoy v. Swift & Co., 201 S.W.2d 350; Hancock v. State Highway Comm., 347 Mo. 944, 149 S.W.2d 823; In re Opel's Estate, 352 Mo. 592, 179 S.W.2d 1; In re Helm's Estate, 136 S.W.2d 416; In re Moynihan, 332 Mo. 1022, 62 S.W.2d 410; In re Wild's Estate, 90 S.W.2d 804; In re Claus Estate, 147 S.W. 199. (3) The case was properly triable in equity, as it sought a dissolution of a partnership between parties occupying a fiduciary relationship, the taking of a long and complicated accounting, as the amount due was not definitely ascertained, and a receivership while the account was being taken. Pemberton v. Ladue Realty Co., 237 Mo.App. 971, 180 S.W.2d 766; Brannigan v. Schwabe, 133 S.W.2d 1053; Robert v. Davis, 235 Mo.App. 974, 142 S.W.2d 1111; McMullen Lumber Co. v. Strother, 136 F. 295; Quality Realty Co. v. Wabash Ry. Co., 50 F.2d 1051; State ex rel. Cockrum v. Southern, 229 Mo.App. 749, 83 S.W.2d 162; Wilson v. Hoover, 342 Mo. 1182, 119 S.W.2d 768; Buckley v. Maupin, 344 Mo. 193, 125 S.W.2d 820. (4) Equity properly took jurisdiction herein, as plaintiff could not secure relief at law which was plain, adequate, complete and efficient, because the facts were highly complicated and legal relief would result in several lawsuits. State ex rel. Place v. Bland, 183 S.W.2d 878; Farmers & Traders Bank v. Kendrick; 108 S.W.2d 62; Bewes v. Buster, 341 Mo. 578, 108 S.W.2d 66. (5) A counterclaim for malicious prosecution cannot be filed in the same proceeding of which defendants complain, as such suit is premature and does not lie until there has been a termination of the main suit in defendants' favor. As the main suit terminated in plaintiff's favor, defendants' counterclaim for malicious prosecution was properly dismissed. Ripley v. Bank of Skidmore, 198 S.W.2d 861. (6) The counterclaim asking affirmative relief was properly dismissed, because: A counterclaim which wholly defeats plaintiff's demand is not allowable. Jones v. Moore, 42 Mo. 413; Hauser v. Burge, 121 S.W.2d 314; Glaus v. Gosche, 118 S.W.2d 42. (7) A final judgment should dispose of all issues. Hence the counterclaim was properly dismissed. Wade v. Natl. Bank of Commerce, 221 S.W. 364; Mt. Vernon Car Co. v. Hirsch Rolling Mill Co., 285 Mo. 669, 227 S.W. 67; Miller v. O'Connell, 235 S.W. 137. (8) The discision in favor of plaintiff necessarily disposed of defendants' asserted counterclaim, and same was properly dismissed. City of St. Louis ex rel. Sears v. Clark, 35 S.W.2d 986; Brandtjen & Kluge v. Hunter, 235 Mo.App. 909, 145 S.W.2d 1009. (9) There was ample evidence to support plaintiff's judgment. Neville v. D'Oench, 327 Mo. 34, 34 S.W.2d 491. (10) The agreement constituted a partnership or joint adventure. Neville v. D'Oench, 327 Mo. 34, 34 S.W.2d 491; Creason v. Deatherage, 325 Mo. 661, 30 S.W.2d 1; Hobart-Lee Tie Co. v. Gradsky, 329 Mo. 706, 46 S.W.2d 859; Prasse v. Prasse, 77 S.W.2d 1001. (11) In the instant case there was a sharing in profits and losses. However, it is not necessary to share in losses to establish a partnership. Berthold v. Goldsmith, 65 U.S. 536, 16 L.Ed. 762; Temm v. Temm, 354 Mo. 814, 191 S.W.2d 629; Schneider v. Schneider, 347 Mo. 102, 146 S.W.2d 584; Van Hoose v. Smith, 198 S.W.2d 23. (12) The conduct of the parties established the existence of a partnership or joint adventure. Temm v. Temm, 354 Mo. 814, 191 S.W.2d 629; Schneider v. Schneider, 347 Mo. 102, 146 S.W.2d 584; Van Hoose v. Smith, 198 S.W.2d 23; Prasse v. Prasse, 77 S.W.2d 1001.

OPINION

Hyde, J.

Action for dissolution of a partnership agreement, accounting to determine profits and plaintiff's share therein, and for receiver pendente lite. Plaintiff alleged that more than $ 3932.00 was due him. Defendants denied the existence of a partnership, stated a first counter-claim for $ 3384.66, claimed to be due them from plaintiff; and stated a second counter-claim for malicious prosecution for $ 50,000.00 actual and $ 25,000.00 punitive damages. The court found that a limited partnership or joint adventure existed between plaintiff and defendants Mr. and Mrs. Otto A. Knell, Sr. (hereinafter referred to as defendants); and that there was due plaintiff from them $ 3987.56 for which judgment was entered in his favor; but that defendant Otto A. Knell, Jr. was not a partner and entered judgment in his favor. Defendants' counter-claim for malicious prosecution was dismissed. Defendants have appealed.

Defendants' malicious prosecution counter-claim was based on the filing of this very action by plaintiff against them. Defendants say that this was a mandatory counter-claim under Section 73 of the Civil Code (Sec. 847.73, Mo. R.S.A.; Laws 1943, p. 377), contending that "it arises out of the transaction or occurrences that is the subject matter of the opposing party's claim," and is a claim which they then had against plaintiff.

Defendants' contention is incorrect because no cause of action for malicious prosecution for the filing of this action by plaintiff then existed, or does now exist, or could ever accrue to defendants until this suit terminated in their favor. [Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861; Niedringhaus v. Zucker, No. 40617, 208 S.W.2d 211 (decided in Div. No. 2, February 9, 1948) and cases cited.] Section 73 is only a procedural statute and it does not change the substantive law as to what constitutes a cause of action or when it accrues. Therefore, the court's action in dismissing this counter-claim was correct.

Plaintiff claimed to have made an agreement with defendants in December 1941 to take charge of the commercial department (supplying business offices and industrial establishments) of their floor covering business. Defendants did both commercial and domestic (private residence) floor covering and their salesmen of domestic coverings worked on salaries only. Plaintiff was the only person selling commercial coverings and no one else got a share of the profits. Plaintiff said he was a partner in that department which he operated. He said he was to get $ 35.00 per week salary and 20% of the net profits, with three cents per mile for the use of his car. Plaintiff worked with defendants during 1942, 1943 and 1944; but opened his own business January 1, 1945. He made contracts for jobs but had nothing to do with the installation of these jobs. He set up a system of accounting for this business which would show complete costs on each job but the books were kept by defendants' bookkeeper. He said there was an accounting between the parties in April 1942, showing thirteen completed contracts of $ 9248.05 on which commissions amounted to $ 371.43; but that defendants only paid $ 200.00 at that time. He said that he was never able to get another accounting, but that small payments ($ 50.00 or $ 100.00) were made to him when he asked for settlement. Two checks were returned marked "insufficient funds." He was never able to get the complete and accurate costs on the contracts he made after April 1942. Plaintiff did receive $ 35.00 weekly, as well as the three cents per mile for use of his car which was paid to him on his weekly statements. Plaintiff claimed to have obtained 150 contracts with total sales amounting to $ 138,560.00. He figured the profits at $ 37,413.00 making his share $ 7,482.60. He said he had received $ 3,468.00 leaving the balance due him $ 4014.60.

Defendants claimed that ...