Franke v. H. P. Nelson Co.

BakNes, J. If the complaint states any cause of action legal or equitable, a demurrer on the ground that no cause of action is stated will not lie. Sec. 26.49a, Stats.; St. Croix C. C. Co. v. Musser-Sauntry L., L. & M. Co. 145 Wis. 267, 130 N. W. 102; State ex rel. Att’y Gen. v. Norcross, 132 Wis. 534, 112 N. W. 40. The action apparently is primarily brought to quiet title to .certain choses in action held by the plaintiff, consisting of notes secured by liens on the pianos in payment for which the notes were given. As incidental to the main relief, certain of the defendants are asked to account for and pay over to the plaintiff moneys which they collected from the purchasers of pianos which the plaintiff asserts belong to him. Plaintiff also seeks to have the defendants turn over to him the securities taken on resales of pianos where he holds the notes and liens given on the original sale, on the ground that he is in fact the owner of such securities because of the liens which he held on the musical instruments by virtue of the original sales. Unless the complaint shows a primary right on the part of the plaintiff, a corresponding duty on the part of the appellant, and a violation of that right or duty by the appellant, no cause of action exists. There must be a right in the plaintiff and a violation of it by the defendant to make a cause of action. McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445. As to the pianos still held by the purchasers named in the contracts enumerated in the ■ complaint, the plaintiff asserts the right to be declared to be the true owner of the notes and contracts outstanding and of the right to collect such notes [247] from tbe makers, in cask or by seizure and sale of the pianos under the contracts assigned to him, without interference or molestation from the defendants. It is alleged that the right has been violated by the defendants in at least three particulars: (1) By asserting a paramount claim to the securities given by the purchasers; (2) by actually collecting money from them on the strength of such claim; and (3) by forbidding the purchasers to pay plaintiff the amounts due him. As to the pianos which were taken back and resold, the plaintiff asserts the right to have the cash paid on the resale turned over to him, and the further right to have the securities taken on such resale delivered to him. If these rights existed, the complaint shows that they have been flagrantly violated. It is quite clear that the complaint shows a primary right and a violation of such right. The real question presented is: Has the plaintiff an adequate remedy at law? He can commence suits against the makers of the securities which he holds on instalments as they become due, and in such suits the ownership of the securities may be determined by bringing all parties in interest before the court, but it does not follow that such a remedy is adequate. In each instance there are two or more persons who claim to be the sole owners of a chose in action. The debtor does not know which one to pay, and to be on the safe side must refuse to pay any of the claimants. Of course the debtor can wait until suit is brought and then pay the money into court and ask that all claimants to the fund be made parties-to the action and then let them fight it out. But such a proceeding involves expense to the purchasers and as many actions as there are contracts. Undoubtedly many of the debtors can ill afford the expense, and if it were otherwise that would be no good reason why they should be subjected to it. The title to the securities being once determined by a judgment of court, the necessity for further litigation will in all probability be obviated. Those desiring to pay will have a [248] means of knowing to whom payments may be made, and those who desire to surrender tbeir pianos will know to whom the .surrender should be made. As the matter now stands, none of the debtors can with any degree of safety pay the plaintiff or any one else, because if they should pay the wrong party they may be called upon to pay a second or even a third time. The plaintiff asserts the right to collect the amounts due and to become due on some forty-eight musical instruments sold to as many different purchasers. In each instance there is at least one other claimant. This means, in all probability, that if plaintiff is relegated to his remedy at law he will have to bring a large number of suits and to bring them against persons who may be perfectly willing to pay whenever the not unreasonable privilege is accorded to them of knowing definitely who is entitled to the money. The main object and purpose of this suit is to settle that question and to settle it without a multiplicity of suits and without unnecessary hardship to the plaintiff or to innocent third parties. It certainly seems reasonable enough to permit the maintenance of a single action to adjust the rights and the equities of the parties thereto. The action commenced partakes of the nature of the old bill of peace. The prevention of a multiplicity of suits is a recognized head of equity jurisdiction. The action can be sustained on this ground and perhaps on other grounds as well, but this one is sufficient. The numerous controversies that would arise in case relief was sought at law would really be controversies between the parties to this suit, because presumably the debtors would in most cases pay what they owed into court and ask that the various claimants who are parties to this action be brought in to litigate their right to the money so paid. The parties to this action, excepting the Heller Piano Company, derive their title to the securities or supposed securities which they hold from a common source; the matters in dispute are of the same [249] nature and have a connection with each other, and all of the parties are more or less concerned in the result. These facts are sufficient to justify a resort to the equity side of the court. 16 Cyc. 66 and cases cited; 1 Pomeroy, Eq. Jur. (3d ed.) § 246; New York & N. H. R. Co. v. Schuyler, 17 N. Y. 592, 596 et seq.; Saratoga Co. v. Deyoe, 77 N. Y. 219, 225; Blach v. Shreeve, 7 N. J. Eq. 440, 456; Sheffield Waterworks v. Yeomans, L. R. 2 Ch. App. Cas. 8, 11. The contention that several causes of action are improperly united is not well taken. The complaint purports to state but a single cause of action, and no motion has been made to make it more definite and certain by separately stating the different causes of action which the appellant seems to think are stated therein. We think it states but a single cause of action, with which is coupled a demand for relief incidental to the cause stated. It may well be that the plaintiff has not been overmodest in asking relief, but the number of causes of action stated in a complaint is not determined by the comprehensive character of the relief prayed for, and it does not follow that because too much is asked the court is going to grant any greater relief than the plaintiff is justly entitled to. The complaint was also demurred to on the ground that there is a defect of parties defendant, in that the several makers of the contracts for the sale of pianos alleged to have been sold and delivered by the Heller Piano Company to the plaintiff were not made parties. There is probably a sufficiently particular statement of the defect relied on to comply with sec. 2651, Stats., inasmuch as plaintiff could readily ascertain the names of the persons whom the demurrant claims should be made parties, by consulting the contracts which he holds. Baker v. Hawkins, 29 Wis. 576; Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522. It may be that some of those persons are necessary parties to a determination of the controversy which the plaintiff seeks to settle. That fact, if it is a fact, does not appear from the [250] face of the complaint. The defect, therefore, if there is one, should be taken advantage of by answer, as provided in sec. 2653, Stats. We think, when a final judgment is entered in this action determining and quieting title to the securities in controversy, the debtors may act on such determination and make payment to such parties as the court decides are entitled thereto, and that such judgment will estop the defeated claimants from enforcing their alleged claims against such debtors. Cer- ' tainly after a judgment is entered quieting title to real estate a prospective purchaser or incumbrancer can rely thereon and deal with the party whose title is quieted without fear of successful molestation from the defeated claimant. We see no reason why the same rule should not apply to chattels where equity has jurisdiction to settle the title thereto. For this reason it is not apparent from the complaint why the debtors should be made parties to this suit. By the Court. — Order affirmed.