Opinion
No. 6920.
November 8, 1950.
APPEAL FROM THE CIRCUIT COURT, PHELPS COUNTY, CLAUDE E. CURTIS, J.
Dewey Routh, E. W. Allison, Rolla, for appellant.
This is an injunction proceeding. Plaintiff filed his petition, and, no circuit judge being present in the county, a temporary injunction was issued by the magistrate. A motion to dissolve the temporary injunction was filed as well as answers and, upon a trial, the temporary injunction was dissolved, a decree was rendered for the defendants and plaintiff's petition dismissed. From this decision, the plaintiff has appealed.
Attached to the petition and made a part thereof, by reference, was a contract that had been entered into between plaintiff, one John Cruts and defendant Judge Fowler, all of Rolla, Missouri. Briefly, the contract stated that Cruts owned a lease on a gasoline service station located in Rolla; Cruts was to assign the lease to Judge Fowler, and Rucker and Fowler were to pay him $40 per month in advance out of the income of the service station during the remaining term of the lease. Full management, control and operation of the service station was to be in Fowler, until the termination of the agreement as between Fowler and Rucker. When the business arrangement between Fowler and Rucker terminated "the control, management and operation of the business, together with the stock of merchandise and equipment on hand shall vest in Ray S. Rucker." The business was to be carried on under the name "Judge Fowler's Service Station." Fowler was to draw $50 and Rucker $25 per week from the income of the station. Rucker owned the Rolla Public Service Company, and had a group of busses operating in Rolla. By the contract Fowler agreed to service these busses free of charge "but he shall be paid and shall accept wholesale prices for all merchandise, parts and equipment that he may furnish such vehicles." After the payment of various sums specified, if there was a surplus, it was to be divided between Rucker and Fowler. All insurance that Cruts had on the service station and its operations was to be assigned to Fowler. The contract also contained these paragraphs:
"10. The provisions of this contract, as the same affect Fowler and Rucker, may be terminated, as between them by either one of said parties giving notice to the other of his desire and intention to terminate the relationship hereunder as between the two. This notice of intention to terminate relationship under the terms of this contract, as between the said named two parties, shall be in writing if the party to whom it is directed requests the same.
"11. It is understood and agreed that all obligations and liabilities, whether on account of merchandise bought and sold or for claims for damages or personal injuries, that may rise out of or by virtue of the operations of said service station, except as between the signatory parties hereto, are and shall be exclusively the obligations and liabilities of Fowler, in whom the management, control and operations are vested, so long as he may remain in that capacity."
Plaintiff's petition, filed on the 25th day of February, 1949, pleads this contract and further, "plaintiff says that defendant Fowler has so notified him of his desire and intention to terminate the relationship existing between the two parties under said contract in writing; and that said relationship between plaintiff Rucker and defendant Fowler as provided by the terms of said contract stands terminated by reason of defendant Fowler's notice to plaintiff of his desire and intention to terminate the same."
It was then alleged that notwithstanding the termination of the contract that, "the defendants, and all of them, have wrongfully conspired and confederated themselves together to wrongfully usurp the control, management and operation of said retail motor vehicle service station, and are threatening to oust and evict the plaintiff from his rightful control, management, operation and enjoyment of the peaceable possession and uses and benefits to be derived and to which he is entitled from said retail motor vehicle service station, and plaintiff states that the defendants, so wrongfully conspiring and confederating themselves together for said wrongful purposes will carry their threats of usurpation and eviction into effect, and thereby unlawfully and wrongfully exclude, and evict and forever deny plaintiff the peaceable occupation, enjoyment, control and management of said service station and business, unless they be restrained and enjoined from their wrongful intentions and designs by the orders of this court."
Plaintiff then asserted that he was required to invoke the powers of a court of equity to avoid a multiplicity of suits and unless defendants were enjoined "plaintiff will suffer irreparable damage not capable of calculation by any remedy at law."
The petition further stated that the circuit court of Phelps County was not then in session, that no judge of the circuit court was within Phelps County and asked that a temporary injunction be issued by the magistrate, which was accordingly done, instanter.
Fowler's answer admitted the execution of the contract, but contended that it was void and unenforceable for lack of mutuality, was harsh, unconscionable and inequitable and that it had terminated at the expiration of the lease of the premises to John Cruts. Further, that plaintiff's action was for the possession of real estate for which he had adequate legal remedies, and the remainder of plaintiff's petition was denied. It was then stated in the answer that Fowler then held a valid lease on the premises from the owner, Mrs. Brisch, and that plaintiff had no interest thereunder; that plaintiff's possession of the premises (at the time of the filing of the answer, which was March 26, 1949) was wrongful and without any semblence of right because of the inequitable and void order of the magistrate court and that plaintiff had wrongfully usurped possession of the premises and ousted defendant therefrom without making any accounting to the defendant for profits of the joint enterprise.
Defendant Walter Elliott, in his answer separately denied the allegations of each and every paragraph of plaintiff's petition. Two other defendants had been included in the petition but the case as to them was dismissed by stipulation and they need not be further noticed.
At the close of plaintiff's evidence, defendants filed a motion to dissolve the temporary injunction and for judgment, which was overruled. A similar motion was filed at the close of all the evidence and was also overruled.
At the trial two witnesses testified, plaintiff Rucker and defendant Fowler. The evidence on the part of plaintiff showed that prior to June 26, 1947, John Cruts operated the service station in question and Fowler was an employee working there. The owner was Mrs. Dorothy Brisch. Rucker was the owner of a city bus line, engaged in hauling passengers in the City of Rolla. The contract in question was executed June 26, 1947. At that time Cruts had a stock of merchandise in the station which plaintiff bought for $2,336.60, paying cash for it. Plaintiff also furnished $25 for "petty cash." At various times thereafter, plaintiff also advanced money to Fowler to pay service station bills when the income was not sufficient to meet all demands. These advances totaled $436. Plaintiff also endorsed a note at the bank for $900 and the inference is that both the $900 and the $436 went into the business. At the time the contract was executed, Fowler took active charge of the station which was at that time using Sinclair products. Some months later, Fowler changed from Sinclair to Moulder Brothers products. At that time Fowler informed plaintiff of the change and plaintiff told him, "that would be his affair. * * * I told him that would be his business." After the service station had been using Moulder Brothers products for some time, Fowler thought it would be advantageous to the business to change back to Sinclair products and so informed the plaintiff. Fowler and defendant Elliott, in trying to convince plaintiff of the change, came to his house several times. Elliott was an employee of the Sinclair Company. Plaintiff thought a change back to Sinclair products was unwise and informed Fowler if such a change was made, he could consider that action to be a notice of dissolution of the business arrangement. Fowler asked the plaintiff to think it over and notify him of his conclusion that night but the parties did not come to an outright disagreement, at that time.
Fowler later informed plaintiff that he had signed a contract with Sinclair and a delivery was to be made the next morning. Plaintiff informed him that he was going to consult his attorney and see what he should do and Fowler told the plaintiff that he needn't worry about that as Elliott and others had told him that the agreement was of no value, and to come the next day and get his merchandise out of the station. The next morning plaintiff filed his petition in this case and, by virtue of the temporary injunction, Fowler was ousted from the management of the station immediately. Plaintiff took charge and saw Fowler no more. The lease from Mrs. Brisch to Fowler was partly typed by the plaintiff and after being signed was turned over to him by Fowler. This lease was introduced in evidence and at the time of the trial was in Fowler's possession.
On cross examination, the plaintiff stated that after obtaining possession of the station he sold the business to one Glen Williams. Under the contract, Fowler was in sole control, charge and possession of the service station and had the responsibility for operating it and until the injunction was issued and served on Fowler, he was in sole possession of the property. The only thing that defendant Elliott did was to come out to plaintiff's house with Fowler a number of times. When asked on cross examination what defendant Elliott did, plaintiff testified, "Well, when he was with Fowler, he would cast aspersions against me; when he was with me he would cast aspersions against Fowler."
Plaintiff stated that after he took possession of the filling station, he paid the rent but he identified a receipt dated March 1, 1949 from Mrs. Dorothy Brisch stating that she had received the rent from Fowler for the period of March 1, 1949 to March 31, 1949. This was all of plaintiff's evidence.
For the defendants. Fowler testified that prior to June 26, 1947, the date of the contract, he operated the filling station owned by Mr. Cruts. He admitted entering into the contract with Cruts and plaintiff and that pursuant to its provision, he serviced all of plaintiff's busses, filled them with gas, greased and washed them, charged the batteries when necessary, changed tires and at various times drove them. About three-fourths of his time at the station was taken up in this way. He admitted that he and plaintiff signed a note at the bank to procure money to make purchases to operate the station. His salary of $50 per week and plaintiff's salary of $25 per week was paid from the income. A pinball machine was located in the station but all the proceeds of this went to plaintiff. He further testified that he at various times invested some of his own money in the station but fixed no definite amounts. In raising money to go into the station, he put a second mortgage on his house, was unable to meet the payments on it and later lost it. With the knowledge of plaintiff, he obtained the lease from Mrs. Dorothy Brisch in April, 1948, the lease to Cruts having expired. Plaintiff typed portions of this lease. He stated that plaintiff suggested the change to Moulder Brothers because gasoline could be obtained from them two cents cheaper on the gallon, a great deal of which was used in plaintiff's busses. He stated that if he changed back from Moulder Brothers to Sinclair, that the Sinclair people would fix up the restrooms with tile, plumbing "and everything in there that was necessary." He would not get the gasoline cheaper from Sinclair, but could sell more Sinclair gasoline then he could of the kind furnished by Moulder Brothers, which was Tydol. He told plaintiff that he intended to enter into a contract with Sinclair and that plaintiff said, "If you do, you are liable to get sued." He was in sole control and management of the station until he was ousted by service of the temporary injunction on him. Plaintiff had never informed him that he intended to terminate the contract.
On cross examination he testified that sometimes he would work one night a week in addition to the days and when he did, he got a weekly salary of $58.30, that at the time the contract was entered into, (June 26, 1947) he had no money and he did not call upon plaintiff to furnish any money during the period he was obtaining gasoline from Sinclair; that if one of plaintiff's busses broke down, he would take another and cover the route, which kept him away from the filling station for a considerable period of time. He did this because the plaintiff called on him to do so. He testified, "That is what Ray (Rucker) wanted did." He denied that defendant Elliott had ever made any trip with him to see plaintiff and also denied that he had ever said anything to plaintiff about him taking his merchandise out of the service station. He signed the contract with Sinclair the night before the suit was filed and told plaintiff about it at 9:30 a. m., the next day and the injunction was served on him about 1:30. He signed the contract with Sinclair in his own name as he was the manager of the business and everything was conducted in his name. Plaintiff never did tell him he would terminate the contract and the first he knew it was to be terminated, he was served with the summons in the suit and the temporary injunction. When the temporary injunction was served upon him, in obedience to its commands, he turned everything over to plaintiff and was not paid his salary for the last week.
The contract between Cruts, Rucker and Fowler was introduced in evidence as well as the receipt for $50 rent and also the lease from Mrs. Brisch to Fowler. This was all the evidence.
The trial was concluded September 22nd and the court took the case under advisement until the 7th day of November, 1949, and at that time rendered judgment for defendants on the ground that plaintiff under the evidence was entitled to no injunction or equitable relief against defendants; that plaintiff had an adequate remedy at law, and the court found all the issues for defendants. The temporary injunction was dissolved.
On appeal it is our duty and responsibility to decide an equity case de novo, but due deference should be accorded the findings of the Chancellor, who had the advantage of hearing the witnesses and observing them as they testified. Wagner v. Hicken et al., Mo.Sup., 232 S.W.2d 531. Wellborn v. Rigdon, Mo.Sup., 231 S.W.2d 127. Bank of Poplar Bluff v. Casey, Mo.App., 231 S.W.2d 851.
Plaintiff's petition states that defendants Fowler, Elliott, one Robert G. Griffin and the Sinclair Refining Company (the case as to the last two being dismissed by stipulation before trial) entered into a conspiracy to "usurp the control, management and operation of said retail motor vehicle service station, and are threatening to oust and evict the plaintiff from his rightful control, management, operation and enjoyment" of the possession and benefits to be derived from it and that the defendant Fowler had notified him in writing of the termination of their contractual relationship as provided by the contract. Plaintiff contends that he seeks a court of equity (a) to avoid a multiplicity of suits and (b) because his damages are not capable of calculation in any legal action. There is no evidence of multiple suits impending. The petition does not allege insolvency on the part of defendant Fowler or any one else. It is true defendant Fowler testified that at the time of entering into the contract (June 26, 1947) he had no money. It is also true that during his operation of the station the income of the station was not sufficient, after the payment of expenses, to purchase supplies and that each of them advanced money for that purpose. Defendant Fowler also admitted that two months after he had been ousted from the operation of the service station by the temporary injunction, "I was broke; I just couldn't go any further, that's all; I didn't have any money; I was out of a job and everything," and unable to pay any further rent to the owner of the premises. However, he testified he had made two monthly payments after his ouster.
If insolvency were to be relied upon, it should have been existent at the time of the filing of the petition and the issuance of the temporary injunction, and should have been pleaded. 28 Am.Jur. § 182(7), page 864. If defendant Fowler had been insolvent at the time the petition was filed to such an extent that no amount could be recovered from him in an action at law (assuming he was indebted to the plaintiff, which is not pleaded or shown by the evidence) it could have been easily proved as he took the witness stand in his defense. While it is strongly urged on appeal that plaintiff was entitled to an injunction by reason of the insolvency of Fowler, the record does not indicate the cause was tried on that theory and insolvency was only incidentally touched upon in the testimony. Furthermore, it has been held that insolvency alone is not sufficient to justify an injunction that takes property out of the possession of one party and places it in the possession of another. Morris v. Maheras, Mo.App., 197 S.W.2d 998 and cases cited. See also Stevens v. Myers, Mo.App., 73 S.W.2d 334.
Neither is there any evidence of conspiracy between Fowler and the other defendants named in the petition. The most favorable view of the evidence merely shows that Fowler visited the plaintiff in company with Elliott several times and that Elliott at other times cast "aspersions" upon both plaintiff and defendant Fowler. This was denied by Fowler. The evidence does not show threats by Fowler or any one else that plaintiff's rights under the contract are going to be molested. This testimony could hardly create a suspicion of such a conspiracy as is alleged in the petition. The contract provided that either Fowler or Rucker could terminate the relationship, as between them, at will, by giving notice which must be in writing, if the other party demanded it. The testimony does not show such a compliance with the contract. The most that it shows is that at one time, defendant Fowler told plaintiff, when they were arguing about changing the source of supplies for their station, that the contract was of no force anyway and that at another time when Fowler informed plaintiff that he had already signed a contract with Sinclair that plaintiff said he was going to consult his lawyer. Neither of these incidents was a termination of the relationship under the contract. No such definite decision was arrived at as would entitle the other party to demand, as was his right, a notice of the termination in writing. It merely shows that plaintiff was piqued because Fowler was changing to Sinclair products (as he had a right to do under the contract) and that such change would cost plaintiff two cents more on the gallon for the gasoline used in his busses. This falls far short of showing a threatened irreparable injury. Under such conditions, the possession of Fowler, on the day the suit was filed, was not that of a trespasser but was such as he was entitled to until there was a definite termination of his rights under the contract. The preponderance of the evidence tends to show that it was the intention of Fowler to continue the operation of the station as provided by the contract, although changing his source of supply to Sinclair.
The burden was upon the plaintiff to prove the allegations of his petition and we think the trial court was correct in holding that plaintiff was not entitled, under the showing, to equitable relief.
Respondents have filed no brief in this court. We have carefully read the cases cited by appellant. In none of them are the facts the same as presented here.
The judgment of the trial court should be affirmed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.