Vogelsong v. St. Louis Wood Fibre Plaster Co.

REYNOLDS, P. J. (after stating the facts).— The petition is addressed “To the Honorable Judge of the Circuit Court, City of St. Louis, State of Missouri, in Chancery sitting.” We have long since abandoned in this State the old form of a bill in equity. Our statute (Revised Statutes 1899', sec. 592) providing that the first pleading on the part of the plaintiff is the petition, prescribes what it shall contain, the third requisite being that it shall contain £ ‘ a demand of the relief to which the plaintiff may suppose himself entitled. If the recovery of money be demanded, the amount thereof shall be stated, or such facts as will enable the defendant and the court to ascertain the amount demanded.” Construing this latter clause, our courts have often held that when in a suit of equity, there is a general prayer for relief, as there is in this case, such relief will be granted as the facts set out will warrant. It was long ago decided that since the adoption of our Code, the bill of discovery, as known to the ancient chancery practice, no longer prevailed in this State, our courts holding- that the statutory provisions for taking depositions have done away with the necessity of the old bill of discovery and. that — 587 — while the deposition was not a substitute for the bill of discovery, all that could be accomplished by means of a bill of discovery could now be accomplished by means of depositions. See Eck v. Hatcher, 58 Mo. 235, 1. c. 239; Larimore v. Bobb, 114 Mo. 446, 1. c. 453, 21 S. W. 922; Tyson v. Farm & Home Savings & Loan Assn., 156 Mo. 588, 1. c. 594, 57 S. W. 740; Strode v. Frommeyer, 115 Mo. App. 220, 1. c. 223, 91 S. W. 167. Nor will a bill or action for an accounting lie as a ground for relief in equity, unless founded upon some known and established equitable ground of action. As illustrating this, see Pope v. Salsman, 35 Mo. 362. While our statute (R. S. 1899, sec. 776) provides, in case of default, for instance, that the damages or other relief shall not be other or greater than that which shall have been demanded in the petition, the same section provides, “hut in any other case, the court may grant him any relief consistent with the case made by the plaintiff and embraced within the issues.” This view has been held by the Supreme Court as having no application where the final judgment for defendant has been reached on demurrer. “In that event,” says the court, “the prayer for general relief, supplemental to one for specific performance, cannot, in view of section 2039 (Revised Statutes 1889), be construed as a prayer for money judgment.” [Rush v. Brown, 101 Mo. 586, 1. c. 592, 14 S. W. 735.] Section 2039, Revised Statutes 1889', is now section 592, Revised Statutes 1899. That is to say, if sufficient facts are stated to entitle the party to relief, that the particular relief he may ask may, if necessary, be disregarded, and the court may grant him the relief to which the facts stated entitle him. So that applying these rules to the case before us, we disregard the prayer for discovery and for an accounting and pass to the consideration of the case on the facts stated in the petition. Without setting out the amended petition in full or the lease or license therein referred to, we think we have given — 588 — enough to show what is involved in this case, and briefly, the claim is that plaintiff, owner of a patented machine for making wood fibre plaster, sold or leased the right of the use of it for the term of the patent, to Gordon 'Willis in certain designated territory, Willis at the time acting for the St. Louis Wood Fibre Plaster Company, thereafter to be organized. That company was organized and Willis and Hunkins and Walker and Lazarus, the three latter being witnesses to the license contract and thereby undoubtedly intended to be charged by plaintiff with knowledge of it, proceeded under the contract for about two years, when they appear to have abandoned it and to have operated under another company organized by them, called the Acme Cement Plaster Company, and that company, using plaintiff’s machine and other machines, carried on operations of manufacturing wood fibre cement plaster. This is charged to be contrary to the terms of the contract between plaintiff and Willis. The thought of the pleader seems to be that some sort of constructive trust was imposed on the individual defendants and on the Acme Cement Plaster Company, by reason of the fact that the same parties were in each concern, the charge being that the St. Louis Wood Fibre Plaster Company was organized by the defendants named with the fraudulent intent to injure “defendant” (sic), it being designed by defendants when the agreement was made, possibly meaning the agreement of lease with Willis, although this is not clear, that when it should suit the purposes and interests of the Acme Cement Plaster Company and the individual defendants, the St. Louis Wood Fibre Plaster Company was to be abandoned by them. This is all that may, by any construction, be held to charge fraud. Counsel cite in support of this theory of a constructive trust, various eases from this court, among others, Bertholdt v. Land & Lumber Co., 91 Mo. App. 233, and Barrie v. United Railways Co., 138 Mo. — 589 — App. 557, 119 S. W. 1020, also citing and quoting at length from McConrt v. Singers-Bigger, 145 Fed. 103. We are unable to see that these cases support plaintiff’s contention. There is no averment of any transfer or assignment of the lease from the St. Louis Wood Fibre Plaster Company to the Acme Cement Plaster Company; no averment of privity between the two companies. No averment that the St. Louis Wood Fibre Plaster Company has gone out of business; merely that the defendants have abandoned it. If there was a breach of contract, it was a breach of the contract between him and the St. Louis Wood Fibre Plaster Company, made for that company by its trustee, Cordon Willis, by that company, and whatever remedy plaintiff has or whatever cause of complaint, would seem to be against that company. The mere fact that the same parties were in the two companies as stockholders or managers or citherwise, is not in itself sufficient to render one company chargeable with the acts of the other. We have pointed out the rule which saddles liability where there is identity of the parties in the two cases referred to and cited by plaintiff, that is in the Bertholdt and Barrie cases. The averments here made do not bring the ease within the rule. No relief is asked and no facts stated that call for relief against the St. Louis Wood Fibre Plaster Company. It does not even appear that any of the individual defendants had a controlling interest in the St. Louis Wood Fibre Plaster Company. By his own statement plaintiff is a creditor at large of that company, with no established demand against it, and no adjudication of any demand or its amount, and no statement on which, by an interpretation of the pleading, we can say what that amount should be. Tt may be that that demand is so far in excess of the jurisdiction of this court that we would be without authority to pass on this case. He shows no right to hold the Acme Cement Plaster Company under the lease; if it — 590 — is true that it is using or has used his patented machine without license, he may have his right to an injunction against its further use and for royalties by way of damages. But that is not this action. At all events the facts stated are not sufficient to establish a constructive trust as against the individuals or against the Acme Cement Plaster Company, and as before said no relief whatever is asked against the St. Louis Wood Fibre Plaster Company. The fraud and conspiracy charged, if any is charged, is that the individual defendants merely organized the St. Louis Wood Fibre Plaster Company with the fraudulent intent to injure the plaintiff — how they were to do so is not stated — and that it was designed by the defendants, when the agreement was made, that when it should suit the purposes and interests of the Acme Cement Plaster Company and the defendants, that the St. Louis Wood Fibre Piaster Company would he abandoned by them. How the abandonment of the St. Louis Wood Fibre Piaster Company by the defendants named was to affect plaintiff is not stated. He had, or at least avers, no contract with these individual defendants, not even a personal one with Will is, to stay in and with the St. Louis Wood Fibre Plaster Company. Non constat but that the last named company still flourished even after these defendants abandoned it. It is not even charged that the latter company sold or assigned or transferred the one machine leased — and- there is hut one charged to have been leased. For all that appears they may have obtained it without the consent of the St. Louis Wood Fibre Plaster Company. Without going further into a consideration of the case or into a discussion of all the points presented in it by the learned counsel for appellant, we have reached the conclusion that the petition fails to state a case entitling plaintiff to any relief in equity on the facts — 591 — stated, and that the action of the circuit court in sustaining the demurrer to it was correct. The judgment is affirmed. All concur.