Otto F. Stifel's Union Brewing Co. v. Weber

186 S.W. 1119, 194 Mo. App. 605, 1916 Mo. App. LEXIS 243

Opinion

Statement.

Plaintiff prosecutes this appeal from a judgment against it on demurrer to the bill. The bill so demurred to is as follows:

“By leave of court first had and obtained, plaintiff files this its second amended petition and for cause of action against the defendants plaintiff states that it is a corporation duly organized under the laws of the State of Missouri and was originally incorporated under the name of Union Brewing Company and that thereafter according to law, after the twenty-seventh day of August, 1907, its name was changed to Otto F. Stifel’s Union Brewing Company; that heretofore long prior to the 28th day of December, 1906, plaintiff and the defendant Julius W. Weber had mutual dealings with each other in which said Julius W. Weber became and, both before and after the 28th day of December, 1906, was indebted to plaintiff in various sums; that thereafter plaintiff under its then name of Union Brewing Company instituted suits against said Julius W. Weber before Louis C. Spies, Justice of the Peace for the First District of said city and State and thereafter on the 27th day of August, 1907, before said justice of the peace recovered judgments against said Julius W. Weber in said suits, one for the sum of $440 and costs and the other for the sum of $403.10 and costs, transcripts of which plaintiff thereafter filed in the office of the clerk of the circuit court of said city, which said transcripts are numbered 14845 and 14846 respectively; that said judgments are both final and unappealed from and that although plaintiff has endeavored to compel the payment of the same by levy under execution, said judgments remain and are now wholly unsatisfied.

“Plaintiff further states that while said indebtedness from said Julius W. Weber to the plaintiff was accruing, said defendant was the owner in fee simple and free of encumbrance of an undivided one-fifth interest in and to the following described real estate situated in block number 1932 of said city of St. Louis, Missouri, namely: A lot beginning at the southwest corner of Second street and Bremen avenue, thence running westwardly along the south line of Bremen avenue thirty-two feet to a point; thence running southwardly and parallel to the west line of Second street one hundred feet to a point in the northern line of lot number 10 of block number 1 of McGuire’s Second Addition, thence running eastwardly thirty-two feet to' the west line of Second street, thence northwardly along the west line of Second street one hundred feet to the point of beginning;' that on said 28th day of December, 1906, said Julius W. Weber and the defendant Louise Weber, his wife, with the intent to hinder, defraud and delay the creditors of said Julius W.-Weber in the collection and enforcement of their just demands against him, the said Julius W. Weber, and particularly the plaintiff, by their deed of quit-claim of said date and thereafter recorded on the 3rd day of January, 1907, in book 1973 of the recorder’s office of said city, for a pretended consideration of two. thousand dollars pretended to convey said real estate to the defendant Charles O. Weber; that in truth and fact no consideration passed from said Charles O. Weber to said Julius W. Weber for said pretended conveyance and that said conveyance was intended by the parties thereto only to vest the title to said real estate in the defendant Charles O. Weber for the use and benefit of and secret trust for the defendant Julius W. Weber and that after said conveyance was recorded said defendant Charles O. Weber held whatever title was conveyed thereby to him in trust for and for the use and benefit of said Julius W. Weber and for the purpose of preventing the creditors of said Julius W. Weber, particularly the plaintiff, from levying upon said property, executions to collect judgments obtained by them against him.

“Plaintiff further states that contemporaneously with the execution and delivery of said deed of quitclaim, and in pursuance of the purpose and intent of said Julius W. Weber to hinder and delay and defraud his creditors, said defendant Charles O. Weber, together with (Mary Weber, Ms wife, executed and delivered to the defendant Julius W. Weber a quit-claim deed by which they pretended to convey said real estate to the defendant Louise Weber; that the consideration mentioned in said last named deed was the sum of one dollar, but that in truth and fact no consideration therefor passed from said Louise Weber to said Charles O. Weber; that said deed last mentioned is also dated on said 28th day of December, 1906; that both said deed and said quit-claim deed by which said Julius W. Weber pretended to convey said real estate to said Charles O. Weber were acknowledged before William II. Hauschulte as notary public.

“Plaintiff further states that said deed of quit-claim from the defendant Charles O. Weber and his wife to the defendant Louise Weber although delivered to the defendant Julius W. Weber was not recorded at the time it was delivered, but was withheld from record until the 9th day of June, 1911, nearly four and a half years after its execution and delivery, and that it was then recorded in book 2444 at page 426 of the recorder’s office of .said city; that the withholding of said deed from record was also a part of the fraudulent purpose and intent of Julius W. Weber aforesaid by which he was attempting to hinder and delay his creditors, particularly the plaintiff, in the enforcement of their just claims against him; that shortly after said 9th day of June, 1911, the defend ant Louise "Weber instituted suit together with said Julius W. Weber in the circuit court of the city of St. Louis, Missouri, to partition said real estate and to have the same sold for the purpose of dividing the proceeds thereof; that said suit was at the commencement of this suit pending and was known as number 73160-A, division 5, in the records of said court; that in said suit judgment of partition was heretofore entered on the 9th day of February, 1912, and an order of sale, and that pursuant to said order of sale the defendant George W. Strodtman was appointed special commissioner to sell said real estate and thereafter on the 18th day of March, 1912, sold the same for the sum of fifty-three hundred and fifty dollars; that said sale was thereafter approved by said court and said special commissioner delivered his deed conveying said property and collected from the purchaser said sum; that thereafter said special commissioner made his report to said court showing said facts and that said court thereafter, on April 16, 1912, entered final judgment in said cause, together with an order of distribution, and that by said order of distribution, when entered, said George W. Strodtman as special commissioner was ordered and directed to pay to the defendant Louise Weber as representing said one-fifth interest in said real estate owned by the defendant Julius W. Weber and held for him in secret trust first by said Charles O. Weber and afterwards by the defendant Louise Weber, the sum of $980.07; that prior to the time said order of distribution was entered, on to-wit, April 11, 1912, said Geroge W. Strodtman, through the importunity of said Julius W. Weber and in furtherance of said intention on the part of said Julius W. Weber and Louise Weber to hinder and delay plaintiff in the collection of its said judgments,- was induced to pay over to and did pay over to said Louise Weber for said Julius W. Weber, said sum, and that said Louise Weber now has said sum and now holds the same subject to the order of said Julius W. Weber and said George W. Strodtman; that the payment by said Strodtman of said sum to said Louise Weber, as aforesaid, was made by him wholly without lawful authority to do so and that thereby said defendant became liable to plaintiff for said sum.

“Plaintiff further states that said ,sum so ordered paid by said court by said special commissioner to said Louise "Weber and so paid by him to her was in fact paid to her for the said defendant Julius W. Weber; that said Julius W. Weber and Louise Weber are both insolvent and have no property other than said sum so ordered to be paid to them as aforesaid and paid as aforesaid and that unless said sum is reached by the order of this court and applied to the, payment of said judgments the plaintiff will be unable to have said judgments satisfied and that plaintiff is, therefore, without remedy at law in the premises.

“WHEREFORE, plaintiff prays the judgment and decree of this court that the deeds aforesaid shall be declared fraudulent as to the plaintiff and that the same shall be declared null and void and set aside and that the proceeds of the sale of said undivided one-fifth interest in said real estate attempted to be conveyed by said deeds be declared to be the property of the defendant Julius W. Weber and that an account be taken to ascertain the sum due to plaintiff on account of said judgments, and said portion of said proceeds of said sale be ordered applied to the payment of the judgments aforesaid; that in the meantime defendants Julius W. Weber and Louise Weber be enjoined and restrained from using, dissipating or in any wise disposing of said sum of money, or any part thereof, and that in the event said Julius W. Weber and Louise Weber shall in the meantime have disposed of said sum, plaintiff have judgment against said Julius W. Weber, Louise Weber and said George W. Strodtman for the amount thereof, and that plaintiff have all other and further judgments, decrees and relief from the court to which in the premises it may be entitled, together with judgment for its costs herein expended.”

NORTON!, J. (after stating the facts). — This is a creditor’s bill as for an equitable garnishment of funds of the judgment debtor, defendant Julius W. Weber, in the hands of defendant George W. Strodtman, commissioner, appointed by the court in the partition proceedings. The demurrer of each of the defendants was properly sustained.

The demurrer of defendant Strodtman was properly sustained, for that no fraud whatever or other grounds of equitable cognizance were averred against him; the allegations as to him amounting to no more than stating a ease for a breach of duty at law.

The demurrer of each of the other defendants was properly sustained because the bill is multifarious and also for misjoinder of parties defendant.

It is clear from the facts stated in the bill that no funds of Julius W. Weber whatever were in the hands of defendant Strodtman, the commissioner in partition, at the time the bill was filed • on April 15, for it avers he had paid the funds over to Louise Weber for Julius W. Weber some three or four days before — that is, April 11. The ultimate purpose of the bill is to impound the funds in the hands of the commissioner for the benefit of plaintiff, the judgment creditor of Julius W. Weber. It is true the bill states a cause of action against Julius W. Weber and Louise Weber, to the effect that they had connived in transferring the property to fraudulently hinder and defraud and delay the creditors of Julius W. Weber, and especially this plaintiff, but there is no averment in the bill of any fact which even intimates that defendant George W. Strodtman was a party to this fraud. Indeed, so much seems to be conceded. However, though there is no averment of a conspiracy, it is argued that defendant George W. Strodtman, as special commissioner in the partition suit, is shown to have fraudulently connived with the Webers in paying the money over to Louise Weber on April 11 — that is, four days before the bill was filed, to-wit, April 15. The averments relied upon in respect of this matter are as follows:

‘“That thereafter said special commissioner made his report to said court showing said facts and that said court thereafter, on April 16, 1912, entered final judgment in said cause, together with an order of distribu tion, and that by said order of distribution, when entered, said George W. Strodtman as special commissioner was ordered and directed to pay to the defendant Louise Weber as representing said one-fifth interest in said real estate owned by the defendant Julius W. Weber and held for him in secret trust first by said Charles O. Weber and afterwards by the defendant Louise Weber, the sum of $980.07; that prior to the time said order of distribution was entered, on to-wit, April 11, 1912, said George W. Strodtman, through the importunity of said Julius W. Weber and in furtherance of said intention on the part of said Julius W. Weber and Louise Weber to hinder and delay plaintiff in the collection of its said judgments, was induced to pay over to and did pay over to said Louise Weber for said Julius W. Weber, said sum, and that said Louise Weber now has said sum and now holds the same subject to the order of said Julius W. Weber and said George W. Strodtman; that the payment by said Strodtman of said sum to said Louise Weber, as aforesaid, was. made by him wholly without lawful authority to do so and that thereby said defendant became liable to plaintiff for said sum.”

Obviously this reveals no charge of fraud on the part of George W. Strodtman, for that it is essential the pleading shall state the facts which constitute the fraud relied upon. In other words, as said by our Supreme Court in Goodson v. Goodson, 140 Mo. 206, 218, 41 S. W. 737, “A general allegation of fraud is not sufficient; the facts constituting the fraud should be set out and detailed in the petition. ’ ’ Here, the bill at most avers that George W. Strodtman, through the importunities of said Julius W. Weber, and in furtherance of said intention on the part .of said Julius W. Weber and Louise Weber to hinder and delay plaintiff in the collection of its said judgment, was induced to pay over, etc. Though the bill charges that Strodtman, through the importunity of Julius W. Weber and in furtherance of said intention on the part of Weber to hinder and delay collection of plaintiff’s debt, was induced to pay the money over to Louise Weber, it does not aver that Strodtman intended a fraud nor any facts tending to show that he culpably participated in one. At most, it is averred that he. was importuned and, through such importuning, induced to pay the money over to Louise Weber ip furtherance of the intention of Julius W. Weber (and not of his own intention) to defraud the plaintiff. This does not amount to a charge of fraud against Strodtman.

Subsequently, in the same paragraph, it is averred that the moneys were paid over by Strodtman to Louise Weber “wholly without lawful authority to do so.” At most this amounts to a breach of duty,on his part in the partition proceeding and if plaintiff suffered loss thereby it may be he could pursue Strodtman at law therefor. Of course, the order of distribution entered by the’court on the 16th day of April may not be treated as a ratification of the breach of duty by Strodtman, for the reason the bill was filed April 15 — that is, the day before the order of distribution was made. If, therefore, Strodtman breached his duty in the premises so as to entail a loss upon plaintiff thereby, it may be he would be answerable at law to plaintiff. However, on this we give no opinion, for the question- is beside the matter in judgment here. Be this as it may, there is no cause of action stated against' Strodtman when the ultimate aim of the bill is considered, for two reasons to be treated together: First, it appears from the averments, the fund was not in Strodtman’s hands at the time the bill was filed; and second, no fraudulent conduct whatever is charged against him, to the effect that he paid it over to Louise Weber through a conspiracy or in connivance with the Webers to defeat plaintiff’s right. This being true, at most the bill attempts to state a cause of action at law for a breach of duty in paying the moneys to Louise Weber before an order for distribution is made. Manifestly this renders the bill multifarious. Multifariousness, it is said, is the. joining in one petition of distinct and independent matters, each of which would constitute a Cause of action. [See McGlothlin v. Hemery, 44 Mo. 350, 355.]

The demurrer was, therefore, properly sustained as to defendant Strodtman, because the bill stated no cause of action in equity against him, but rather, if any, one at law’. The demurrer was properly sustained as to each of the other defendants because of the multifariousness of the bill and their misjoinder with Strodtman as defendants therein.

The judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Allen, J./concur.