Opinion
Opinion delivered June 7, 1947.
1. — Interpleader. Interpleader is an equitable remedy existing independent of statute.
2. — Interpleader. Essential conditions of equitable remedy of interpleader are the same thing, debt, or duty must be claimed by both or all the parties against whom relief is demanded, all their adverse title or claims must be dependent or derived from common source, the person asking the relief must not have or claim any interest in the subject matter and he must have incurred no independent liability to either of the claimants, and he must stand perfectly indifferent between them in the position of a stakeholder.
3. — Statutes. Federal court opinions construing federal rules of civil procedure from which Missouri interpleader statute was taken word for word are persuasive in construing such statute.
4. — Statutes — Construction. The purpose of new state code is to simplify and liberalize procedure to the end that litigation shall be expedited and justice be administered with minimum of technical procedural hindrance and it is duty of appellate courts to construe its provisions so as to permit the accomplishment of its purposes.
5. — Interpleader. Sole test of right to maintain interpleader action is plaintiff's possession of money which he owes or to property which belongs to some one else, and which is claimed by defendants or some of them and plaintiff by reason of diverse claims of defendants, has a reasonable bona fide doubt growing out of a question of law or fact as to which one of the rival claimants is legally entitled thereto.
6. — Interpleader. Interpleader statute does not destroy or change the nature of the remedy of interpleader as recognized in equity but merely broadens its scope.
7. — Interpleader. In interpleader action instituted by real estate dealer to implead his principals and prospective purchaser of their hotel for purpose of determining conflicting claims to earnest money paid dealer by purchaser after expiration of time for final consummation of sale, was not an action at law since statute did not create action but merely regulates and liberalizes procedure in the ancient equitable action of interpleader.
8. — Interpleader. In interpleader action court had power to allow plaintiff an attorney fee to be paid out of funds which defendants were claiming, the action not being one at law.
9. — Courts. In construing a judicial opinion, particular facts of the case then under consideration must be borne in mind.
10. — Interpleader. In interpleader action involving claims to $5000, attorney's fee of $350 allowed to plaintiff was not excessive.
Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.
JUDGMENT AFFIRMED.
Charles M. Miller for appellant.
(1) The Trial Court erred in sustaining the "Bill of Interpleader" because under the pleadings and the evidence the facts did not make a case for a "Bill of Interpleader." (2) John A. Moore Co. was at all times agent and "alter ego" for the owners of the property in question and as such had no right to file a "Bill of Interpleader" and interplead its principals as it did and obtain the judgment the Court entered. Pomeroy's Equity Juris (5 Ed.), Vol. IV, Sec. 1326, p. 913. Note American Law Reports, Vol. 97, p. 1004. Paul v. Harold Davis, Inc., (Fla.) 20 So.2d 795. Fogg v. Goode, 78 Fla. 138, 82 So. 616. (3) John A. Moore Co. was not a stake holder and disinterested party and at all times was the agent of the owners of the property in question and was acting as such in collusion with them in filing and maintaining said Bill of Interpleader. It is in fact a wrongdoer, and also the "alter ego" of its principals. Its act is the act of the principals. 15 R.C.L., Sec. 9, p. 227; Calloway v. Miles, (C.C.A. 6) 30 F.2d 14, 15. (4) The liability, if any, between the agent and principals creates an independent liability of the agent to the principals. United Rys. Co. v. O'Connor, 153 Mo. App. 128, 132 S.W. 262. (5) The owners had no right to the $5,000 or any valid reason to assert claim thereto, and that such claim, if any, was made wholly without any foundation whatever or based on any real or substantial ground, and it had no reasonable cause for real doubt as to who was entitled to the $5,000. Little v. Union Trust Co., 197 Mo. 281, 94 S.W. 890; Reppetto v. Roggio, 201 Mo. App. 628, 213 S.W. 525, 526. Baseless claims will not support a Bill of Interpleader. Kahn v. Garvan, 263 F. 909, 915. Calloway v. Miles, (C.C.A. 6) 30 F.2d 14, 15. (6) Their alleged claim is nothing more than an attempt to have it serve as an attachment against McConkey's money, dependent upon getting a judgment in the future against McConkey, for which there are no grounds. United Rys. Co. v. O'Connor, 153 Mo. App. 128, 132 S.W. 262. Granite Bituminous Co. v. Stance, 225 Mo. App. 401, 37 S.W.2d 469, 471. Calloway v. Miles, (C.C.A. 6) 30 F.2d 14, 15. (7) McConkey elected to proceed against Moore Co. as agent of undisclosed principals, for return of the $5,000 and to permit Moore Co. to interplead unlawfully, violates McConkey's right to recover the $5,000 and the most in any event McConkey could recover would be the $5,000, less $350 attorney's fees and Court costs if the money is paid into the registry of the Court in the Interpleader suit, and without just cause or right takes away from McConkey's $5,000, $350 attorney's fees plus Court costs, which in no event can McConkey ever recover. Restatement of Law of Agency, Section 322, page 714. Hartwig Realty Co. v. U.C. Commission, 350 Mo. 690, 168 S.W.2d 78, 81. (8) The Court was without authority to allow an attorney's fee of $350 to be taken from the $5,000 and thus charge the same against McConkey, and if allowable, was excessive. Century Ins. Co. v. 1st National Bank, (C.C.A. 5) 102 F.2d 726, 729; 133 F.2d 789, 792. Groves v. Sentell, 153 U.S. 465, 485. General Am. Life Ins. Co. v. Jackel, 45 F. Supp. 353. American Life Ins. Co. v. Luckman, 21 F. Supp. 39.
Paul R. Stinson and Dick H. Woods for respondent.
Stinson, Mag, Thomson, McEvers Fizzell of counsel.
(1) The trial court properly sustained the Bill of Interpleader. Section 18, Civil Code of Missouri (Mo. R.S.A., § 847.18). (2) The historic technical requirements of interpleader have been abolished by Section 18, Civil Code of Missouri. Section 18, Civil Code of Missouri. Rule 22(1), Federal Rules of Civil Procedure. Gerard Trust Co. v. Vance, 4 F.R.D. 255 (D. Ct. Pa. 1945). Standard Surety Casualty Co. v. Baker, 105 F.2d 578 (C.C.A. 8, 1939). Metropolitan Life Ins. Co. v. Segaritis, 20 F. Supp. 739 (D. Ct. Pa. 1937). Hunter v. Federal Life Ins. Co., 111 F.2d 551 (C.C.A. 8, 1940). Rogers, Historical Origins of Interpleader, (1942) 51 Yale L.J. 924. Buder, Interpleader in Missouri, (1942) 7 Mo. L.R. 203. 4 Pomeroy, Equity Jurisprudence, (5th Ed. 1941) § 1322. Chafee, Federal Interpleader, (1940) 49 Yale L.J. 377, 380, 412. (3) Respondent stated and proved a case entitling it to interpleader relief under the old practice. Tillman v. Bungenstock, 185 Mo. App. 66, 171 S.W. 938 (1914). Woodmen of the World v. Wood, 100 Mo. App. 655, 75 S.W. 377 (1903). Repetto v. Raggio, 201 Mo. App. 628, 213 S.W. 525 (1919). Gietz v. Blank, 108 S.W.2d 1066 (St. Louis C. of App., 1937). McGinn v. Bank, 178 Mo. App. 347, 166 S.W. 345 (1914). Leonard v. Dougherty, 221 Mo. App. 1056, 296 S.W. 263 (1927). (4) The claim of defendants Reefer and Lorsch to the $5000 is substantial and is not merely colorable. Webb Kinne v. Steiner, 113 Mo. App. 482, 87 S.W. 618 (1905). Scott v. Lewis, 177 Mo. App. 8, 163 S.W. 265 (1913). Quigley v. King, 182 Mo. App. 196, 168 S.W. 285 (1914). Doerner v. St. Louis Crematory Mausoleum, 80 S.W.2d 721 (St. L. Ct. of App., 1935). Shupe v. King Realty Co., 29 S.W.2d 230 (K.C. Ct. of App., 1930). Norris v. Letchworth, 167 Mo. App. 553, 152 S.W. 42 (1912). In re First National Bank of Adrian, 207 Mo. App. 115, 230 S.W. 358 (1921). (5) This being an equity case, the findings of the trial judge will not be disturbed unless plainly erroneous. Smalley v. Queen City Bank, 94 S.W.2d 954 (Springfield Ct. of App., 1936). Snow v. Funck, (Mo. Sup.) 41 S.W.2d 2 (1931). Klaber v. Booth, (Mo. Sup.) 49 S.W.2d 181 (1932). Manahan v. Manahan, (Mo. Sup.) 52 S.W.2d 825 (1932). Shaw v. Hamilton, 346 Mo. 366, 141 S.W.2d 817 (1940). Schebaum v. Mersman, (Mo. Sup.) 191 S.W.2d 671 (1946). Hooper v. Wineland, 131 S.W.2d 232 (Springfield Ct. of App., 1939). Kidd v. Brewer, 317 Mo. 1047, 297 S.W. 960 (1927). Lambert v. Rodier, 194 S.W.2d 934 (Kansas City Ct. of App., 1936). (6) The trial court's allowance of attorneys' fees was proper. Woodmen of the World v. Wood, 100 Mo. App. 655, 75 S.W. 377 (1903). County Court v. Baker, 210 Mo. App. 65, 241 S.W. 447 (1922). Hunter v. Federal Life Ins. Co., 111 F.2d 551 (C.C.A. 8, 1940).
This is an interpleader action, instituted by John A. Moore Co., Inc., a real estate dealer, plaintiff, against defendants Serena B. and Hans R. Lorsch and Anne G. and Max C. Reefer, owners of the Rasbach Hotel under a lease for a term of years, and defendant J.S. McConkey, who sought to purchase the hotel from the first named defendants through the agency of plaintiff, to whom McConkey paid $5000 as earnest money in connection with his offer to purchase.
Plaintiff alleged, and the evidence tended to prove, that defendants Lorsch and Reefer were the owners of a leasehold estate upon the land and improvements comprising the Rasbach Hotel, in Kansas City, Missouri, and were the owners of the furniture and equipment used therein; that said defendants gave to plaintiff the exclusive agency to sell said property within a specified period of time, for which service plaintiff was to be paid a commission; that defendant McConkey, on December 21, 1944, submitted a written offer to buy said property for the sum of $57,500, and paid to plaintiff, as earnest money, the sum of $5000; that he offered to pay $11,000 cash on delivery of assignment of the leasehold interest and bill of sale for the personal property, together with possession thereof, and to execute notes secured by deed of trust on the property in the amount of $41,500; that by the terms of said written offer defendants Lorsch and Reefer were required to accept said offer on or before December 23, 1944, and the entire transaction be completed and possession delivered to McConkey within 20 days after acceptance of said offer to purchase; that all of said owners, with the exception of Serena B. Lorsch, accepted said offer, in writing, subject to minor requirements; that defendant McConkey accepted, in writing, the above mentioned written counter proposal of defendants Lorsch and Reefer; (we do not mean to say that the failure of Serena B. Lorsch to sign said proposal was immaterial but we are here merely giving a resume of the happenings, and are not declaring their legal effect); that, thereafter, defendants McConkey, Lorsch and Reefer were unable to agree on the terms of a mortgage agreement and contract covering the unpaid balance of the purchase price; that the time fixed for completion of the transaction expired; and that McConkey demanded of plaintiff that he pay the $5000 over to him, and defendants Lorsch and Reefer also demanded payment to them of the said $5000, claiming that the transaction failed through no fault of theirs but because McConkey refused to go forward according to the contract.
The court heard evidence and adjudged that plaintiff was entitled to implead all defendants in this action; ordered the $5000 paid into the registry of the court, which was done; allowed plaintiff his costs, including $350 for attorneys' fees, same to be paid out of said fund, and discharged plaintiff; and ordered the defendants to plead and show their respective interests and rights in and to said fund. Defendant McConkey appeals.
He contends that plaintiff failed to allege and prove facts sufficient to support the judgment; that plaintiff failed to establish his right to maintain his position as an interpleader.
Interpleader is an equitable remedy, existing independent of statute. 4 Pomeroy's Eq. Jurisprudence 902; Lavelle v. Belliu, 121 Mo. App. 442, 448, 97 S.W. 200; Standard Surety Casualty Company v. Baker, 105 F.2d 578, l.c. 580, 581. As such it ". . . depends upon and requires the existance of the four following elements, which may be regarded as its essential conditions: 1. The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded; 2. All their adverse title or claims must be dependent, or be derived from a common source; 3. The person asking the relief — plaintiff — must not have or claim any interest in the subject matter; 4. He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position of a stakeholder." 4 Pomeroy's Eq. Jurisprudence 906; Paul v. Howard Davis, Inc., 20 So.2d 795, l.c. 796.
However, our legislature has, by enactment of Section 18, Laws Missouri, 1943, page 353, (947.18 Mo. R.S.A. 1939) enlarged the scope of bills of interpleader, and has liberalized the law on this subject. Section 18, supra, completely abolishes condition 2, as stated by Pomeroy, and also permits plaintiff to deny liability, in whole or in part, to any or all of the defendants, thus broadening and liberalizing the remedy in regard to conditions 3 and 4, supra. 1 Carr Missouri Civil Procedure 163; Girard Trust Company v. Vance, 4 F.R.D. 255; Standard Surety and Casualty Company v. Baker, 105 F.2d 578. Since Section 18, supra, is taken, word for word, from Rule 22 (1) of the Federal rules for Civil Procedure, the above Federal Court authorities are very persuasive in construing said section.
Said section provides as follows:
" Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counter-claim. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in section 16 of this code." (Emphasis ours).
The purpose of our new code is to simplify and liberalize procedure, to the end that litigation shall be expedited and justice be administered with a minimum of technical procedural hindrance. It is the privilege and duty of our appellate courts to construe its provisions so as to permit the accomplishment of the purpose so earnestly sought by its authors.
In Geitz v. Bank, 108 S.W.2d 1066, l.c. 1069, the St. Louis Court of Appeals, speaking through Hostetter, P.J., said:
"The crucial test of the right to maintain a bill of interpleader is that plaintiff should be possessed of money or property which he owes, if money, to some one else, or, which, if property, belongs to some one else, and which is claimed by defendants or some of them, and, by reason of diverse claims of defendants or of some of them, the plaintiff has a reasonable bona fide doubt, either growing out of a question of law or of fact, as to which one of the rival claimants is legally entitled thereto."
We think that, by Section 18, supra, the forest of confusing judicial pronouncements concerning the law of interpleader has been cleared away; and that this court is now free to apply the test mentioned in the above decision as, in effect, the sole test of plaintiff's right to maintain this action. Reference to the language of Section 18, supra, particularly that portion we have emphasized, discloses that most of the conditions heretofore required to be shown in order to maintain a bill of interpleader are thereby relegated to the scrap pile of worn out and abandoned rules no longer deemed suitable for 20th century judicial procedure.
The first sentence of the quoted statute prescribes virtually the sole test of whether or not a bill of interpleader will lie. The statute does not destroy or change the nature of the remedy of interpleader as recognized in equity; it merely broadens its scope. 1 Carr Missouri Civil Procedure 163, 4 Pomeroy's Eq. Jurisprudence (5th Ed.), Symons 902, 922. It is purely a procedural statute.
Plaintiff received $5000 from appellant, as earnest money, on a proposed contract to buy certain described property owned by defendants Lorsch and Reefer. The sale was never consummated and, after expiration of the time set by appellant for final consummation of the sale, both appellant and defendants Lorsch and Reefer demanded of plaintiff that he pay over the money.
Defendants Lorsch and Reefer contended that the sale failed of consummation through no fault of theirs but because appellant refused to agree to the terms of a deed of trust securing the unpaid portion of the agreed purchase price, it having been stated in the offer to purchase, as made by appellant, that he would secure by a deed of trust the sum of $41,500 of the purchase price offered.
If defendants Lorsch and Reefer were within their rights in demanding appellant's execution of the deed of trust proposed by them, and if appellant wrongfully refused to execute same, then appellant was not entitled to recover his earnest money. Webb Kinne v. Steiner, 113 Mo. App. 482, l.c. 489; 87 S.W. 618; Scott v. Lewis, 177 Mo. App. 8, l.c. 11; 163 S.W. 265; Quigley v. King, 182 Mo. 205 Mo. App. 196, l.c. 209; Doerner v. St. Louis Crematory and Mausoleum Company, 80 S.W.2d 721, l.c. 723.
We do not hold that a valid contract for sale of the property was entered into between the parties, nor that appellant wrongfully refused, thereafter, to complete the contract as made, if one was made; but it was not necessary that plaintiff determine those questions at his peril. According to the evidence he had no pecuniary interest in the question of who should receive the money. He was only required to appraise the risk of multiple suits, in good faith, in the light of circumstances as they appeared to him at the time the suit was brought. Texas v. Florida, 159 Supreme Court, 563, 121 A.L.R. 1179, l.c. 1187. It was only necessary that appellant, and defendants Lorsch and Reefer, have substantial claims to the fund held by plaintiff, and that he might be exposed to double liability, in order that he be entitled to the relief sought. Woodman of the World v. Wood, 100 Mo. App. 655, l.c. 657; 75 S.W. 377; Repetto v. Raggio, 201 Mo. App. 628, l.c. 638; 213 S.W. 525. Had either of the parties defendant, or both, sued plaintiff, it cannot be questioned but that plaintiff could have answered by way of cross-claim or counterclaim and could have obtained interpleader, under the specific terms of the statute.
Appellant contends that the action is founded on Section 18, supra, and that plaintiff himself so states in his brief; that, therefore, it is an action at law and not one in equity. The statute does not create an action; it merely regulates and liberalizes the procedure to be followed in the ancient equitable action of interpleader. Dowd v. Bond, 199 S.W. 954, l.c. 955, cited by appellant, is not in point.
He also contends that the court had no power to allow plaintiff an attorney fee, to be paid out of the funds. This contention is grounded on the theory that the action is one at law, which theory is erroneous. He cites Foreman v. Foreman, 198 S.W.2d 873, l.c. 874, wherein we held that "in the absence of statutory authority, it was improper to award attorneys' fees." In Prudential Insurance Company v. Goldsmith, 192 S.W.2d 1, l.c. 4, we held that attorneys' fees are not allowable in the absence of statute or agreement.
One invariable rule to be followed in construing a judicial opinion is to bear in mind the particular facts of the case then under consideration. The two above cited cases are law cases. In Woodman of the World v. Wood, supra, we held that it is the rule to allow attorneys' fees in interpleader cases. In Oldham v. McKay, 235 Mo. App. 348, l.c. 359, we held that a trustee in an interpleader action was entitled to have an allowance for attorneys' fees paid out of the trust fund, and that the law is well settled on that point.
The allowance made for attorneys' fees is not excessive, considering the amount involved.
The judgment should be affirmed. Boyer, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.