Opinion
No. 7124.
February 10, 1953.
APPEAL FROM THE SCOTT COUNTY CIRCUIT COURT, SCOTT COUNTY, D. W. GILMORE, J.
J. Grant Frye, of Cape Girardeau, for appellant.
R. F. Baynes, of New Madrid, for Vincent H. Rost.
C. A. Powell, of Dexter, for C. H. Weeks, Jr.
Riddle Baker, of Malden, for H. Ferguson.
Briney Welborn, of Bloomfield, for Norvin Garner.
Blanton Blanton, of Sikeston, for Earl Ferrell.
This case was briefed, but not orally argued. It was appealed on or about April 30, 1952. On April 30, 1952, appellant, referred to herein as plaintiff, submitted the following statement of the case:
"Statement of Case
"Pursuant to Section 847.136 (1939) of the Civil Code, the parties submit the following statement of the case in lieu of transcript on appeal as provided by other sections of such code, namely:
"1. The petition is as follows:
"In the Circuit Court of Scott County Missouri Ernest E. Tanner, Plaintiff, vs. Norvin Garner, Vincent H. Rost, Earl Ferrell, C. H. Weeks, Jr., and H. Ferguson, Defendants.
"Count I — Reformation of Contract
Count II — Damages
Petition Count I — Reformation of Contract
"For his cause of action on Count I of his petition, plaintiff says:
"1. About May 15, 1951, defendants herein (along with others) executed to Ernest E. Tanner, the plaintiff herein, an instrument in writing as follows: `Agreement We, the undersigned, represent that we are the owners and operators of motion picture theaters in Southeast Missouri, and hereby agree that we will permit one Ernest E. Tanner, of Chaffee, Missouri, to deliver us picture films daily, or at such times that we require picture films to be in our hands at such time in advance of showing all picture films delivered to us to patrons, and further that we agree to permit said Ernest E. Tanner to deliver us films regularly each week from the 15th day of May, 1951, at the full agreed price for each week of delivery of films to us for the amount set opposite our names set out below but no extra charges will be paid by us for small package delivery not exceeding 10 pounds in weight, or any advertising matter of any kind that can be picked up at the film terminal in St. Louis City, Missouri. We will not permit or suffer to permit, any other person or firm to enter into another, or succeeding contract, with us for delivery of films to us as long as said Ernest E. Tanner shall carry out the terms and conditions of this agreement.
`William Sherman, $21.33 for Bloomfield Advance
`O. R. Johnson, $11.01 for Bernie, Mo. Family Deal
`Norvin Garner, $14.33 for Dexter, Mo. `Vincent H. Rost, $13.35 for Dixie New Madrid Mo.
`Van Gibbs, $13.74 for Algerian, Risco `W. H. Dillon, $13.74 Dillon Morehouse
`Earl Ferrell, $11.66 Delta Drive In 3.20 a Prgram
`C. H. Weeks, Jr., $16.40 Dexter Weeks at Gem
`Rob Kight, $11.00 for Bell City
`H. Ferguson, $16.00 for Malden.'
"2. It was the true intent of all parties to said instrument, including plaintiff to have it drawn for a period of one year with an option to plaintiff to renew the agreement for another year on like terms; but due to mutual mistake of all parties, plaintiff and defendants and the other signatories thereof, the instrument was written in such defective condition as above quoted.
"Wherefore, on Court I of his Petition, plaintiff prays that said instrument may be reformed to express the true intent of all parties.
"Count II — Breach of Contract
"For his cause of action on Count II of his Petition, plaintiff says:
"1. All the facts set out in Count I of this Petition are re-alleged.
"2. After the execution of such instrument, this plaintiff entered upon the performance thereof and duly preformer all conditions on his part to be preformed thereunder.
"3. About October — 1951, the defendants herein refused to accept the preformance of plaintiff thereunder and notified him that they would no longer be bound by their obligations under such agreement nor accept plaintiff's services and preformance thereunder; and they refused to permit him to do the things which he was obligated to do thereunder.
"4. On account of such breach of contract by defendants, plaintiff has been damaged in the sum of $5,000.00.
"Wherefore, on Count II of his Petition, plaintiff prays judgment against defendants for $5,000.00
"J. Grant Frye Cape Girardeau Missouri Attorney for Plaintiff"
Section 847.136 (1939 Mo. Repts.) is in the same language as Section 512.120 RS Mo 1949, V.A.M.S., and the latter section will be discussed.
To this statement plaintiff and defendants have added the following:
"2. Each defendant (other than defendant Earl Ferrell) filed a motion to dismiss, alleging in substance that the petition alleged a several and not a joint liability on the part of defendants; that the relief sought against defendants did not arise out of the same transaction or occurrences or series of transactions or occurrences, and no question of law or fact common to each such defendant and the other defendants arises or will arise in the proceedings; that the residence of the parties and the place of service of process was as stipulated in Paragraph 4 hereafter; that the court had no jurisdiction in personam, of each such defendant in that service in the county of each such defendant's residence was not authorized by statute, and that the court had no jurisdiction of such defendants.
"3. Defendant Earl Ferrell filed a motion to dismiss, alleging in substance that the alleged agreement referred to in the plaintiff's petition was illegal and a fraudulent agreement in that the plaintiff, by said agreement, proposed to haul for hire without first having procured a permit or a certificate of necessity or other license from the Public Service Commission of the State of Missouri, which would authorize him to act as either a common carrier or a contract hauler.
"4. The motions to dismiss were all heard on April 10th 1952; and on such hearing the parties stipulated facts on the motions as follows:
"`At all times material to these proceedings, the residence of the parties were in various counties, namely: Plaintiff Ernest E. Tanner resided in Scott County; Defendant Norvin Garner resided in Stoddard County; Defendant Vincent H. Rost resided in New Madrid County; Defendant C. H. Weeks, Jr. resided in Stoddard County; Defendant H. Ferguson resided in Dunklin County; and Defendant Earl Ferrell resided in Scott County. The defendant each owned or operated a theater. None of the defendants had any interest in the ownership or management of the theater or other business of any of the other defendants. The contract set out in the petition was signed by each defendant at his place of business at a time when the other defendants were not present. Process for each defendant was directed to the sheriff of the county of the residence of each such defendant and was served in such county on such defendant. At the time the instrument set out in the petition was executed by the defendants, plaintiff did not and does not now have, own, or have the beneficial use of a license, permit, or a certificate of necessity issued by the Public Service Commission of the State of Missouri authorizing him to haul for hire either as a common carrier or as a contract hauler.'
"5. The court sustained each and every one of the said motions to dismiss, as per order made on such April 10th 1952, as follows:
"`Come the parties herein by their various attorneys and the court takes up the motions of each of the defendants, other than defendant Earl Ferrell, to quash service and dismiss plaintiff's petition; and the various motions having been heard it is ordered that the motions of defendant Vincent H. Rost to Quash Service and Dismiss is sustained. The motion of defendant C. H. Weeks, Jr., to Quash Service and Dismiss is sustained. The motion of defendant Norvin Garner to Quash Service and Dismiss is sustained. The motion of defendant. H. Ferguson to Quash Service and Dismiss is sustained.
"`The plaintiff refuses to plead further as to defendants Vincent H. Rost, C. H. Weeks, Jr., Norvin Garner, and H. Ferguson.
"`The court grants leave to defendant Earl Ferrell to file amended answer and motion to dismiss; and said motion of Earl Ferrell to dismiss is heard and sustained.
"`Plaintiff refuses to plead further as to defendant Earl Ferrell.
"`It is therefore ordered that the service as to all defendants except Earl Ferrell be quashed and that the motions of all defendants to dismiss be sustained and that plaintiff's petition be and the same hereby is dismissed and defendants are authorized to go without day and it is ordered that the costs of these proceedings be taxed against the plaintiff.'
"6. On April 17th, 1952, Appellant filed Notice of Appeal (Caption omitted) as follows:
"`Notice of Appeal. Notice is hereby given that Ernest E. Tanner, Plaintiff above-named, hereby appeals to the Springfield Court of Appeals from the judgment entered in this action on the 10th day of April 1952.
"`Dated April 17th 1952.
"`J. Grant Frye Cape Girardeau Missouri Attorney for Plaintiff'
"7. The points relied upon by Appellant are as follows:
"`a. Section 847.16 (1939) of the Civil Code, Paragraph "(a)" authorizes the joining of the action against all of these defendants on both counts of the petition.
"`b. The motion of Earl Ferrell was erroneously sustained since it was not a necessary incident to the performance of the agreement by plaintiff that he personally have any Public Service Commission permit since he could not perform the agreement through an agent having such permit; and further, the agreement wouldn't be illegal of itself, but any illegality would consist in the carrying of the films on the highways and not in the making of the contract; besides such matters would be an affirmative defense.'
"Done this 30 day of April 1952. "J. Grant Frye Attorney for Appellant Ernest E. Tanner "Briney and Welborn by Joe Welborn Attorney for Respondent Norvin Garner "R. F. Baynes Attorney for Respondent Vincent H. Rost "Blanton Blanton, David E. Blanton Attorney for Respondent Earl Ferrell "C. A. Powell Attorney for Respondent C. H. Weeks, Jr. "Riddle Baker, by Charles H. Baker, Attorney for Respondent H. Ferguson"
The language used by plaintiff in his statement of the case is based upon Section 512.120 RSMo 1949, V.A.M.S., which carries forward Section 847.136, 1939. The language used by defendants in the balance of the statement seems to us to follow closely the language used in Section 507.040 RSMo 1949, V.A.M.S., and defendants relied upon that part of Section 507.040, which we quote as follows:
"All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action."
We have come to the conclusion that the contract, signed by defendants, did not create against them a liability jointly, severally or in the alternative, so as to give plaintiff any right to relief in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and that no question of law or fact common to all of the defendants will arise in any action filed, or which might be filed, by plaintiff on the contract set out in the statement of the case.
The contract was signed by defendants at different places, and probably at different times, and different liabilities were incurred thereby. If one of the defendants did not live up to his or its part of the contract, such defendant would clearly be liable in an action filed by plaintiff, without disturbing in any way the question of the performance by the other defendants of the liability incurred by them.
It is not very clear what reformation of the contract plaintiff seeks; but such contract could not be reformed so as to make any defendant liable for the failure of any other defendant to pay for the services of the plaintiff to any other defendant. In other words, the trial court and counsel for defendants have brought the case squarely under that portion of Section 507.040, quoted above.
The trial court certainly had the right to dismiss the action as to all defendants, with the possible exception of defendant Earl Ferrell. To make the dismissal as to defendant Earl Ferrell proper, it was agreed that plaintiff had not secured a certificate of public convenience and necessity under either Section 390.060 or Section 390.090 RSMo 1949, V.A.M.S., both of said cited statutes being laws of Missouri for 1949.
The suggestion of plaintiff that the dismissal as to defendant Earl Ferrell was erroneously granted, does not appeal to us as even remotely possible, whether plaintiff performed his part of the contract through an agent or by water, and thus avoided the necessity of securing statutory authority.
Rule 20, Title 28 U.S.C.A. of the Federal Rules of Civil Procedure provides: "All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action." That is in almost the identical language of that part of Section 507.040, RSMo 1949, V.A.M.S., which we have quoted above.
In discussing that rule, as it applied to the jurisdiction of Federal Courts, Martin. Judge of the Sixth Circuit of the Federal Court of Appeals, in Fechheimer Bros. Co. v. Barnwasser, 146 F.2d 974, 976 said:
"To assume that each member of the company intended to become personally bound to pay for the uniform of any or every other member would be quite contrary to observation and experience. In the absence of positive averment that such guarantee was made, it will not be assumed from conclusions of the pleader."
We do not think that it can be successfully asserted that persons can be joined as defendants, unless such persons are jointly or severally liable for relief arising out of the contract.
Certainly an agreement to pay plaintiff a certain sum at specified times for services, does not render persons liable in the same action, as was attempted in the case before us.
The case was properly dismissed as to all defendants, and the judgment, so dismissing the case as to all of the defendants so joined, should be approved by us, and the order affirmed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.