Primm v. White , 162 Mo. App. 594 ( 1912 )

REYNOLDS, P. J.

(after stating the facts).— It is argued by counsel for appellants that plaintiff could not recover because of laches in bringing the suit; that is to say, the acts of severing the line occurring June 30-, 1908, and the suit not instituted until December 16', of that year, plaintiff had rested on his alleged rights too long to entitle him to come into a court of equity for redress. It is also argued that plaintiff having first undertaken to assert his own right by restoring the connection over the protest and in spite of the objections of defendants, does not come into court with clean hands. The further claim is made by appellants, that plaintiff has no right under the circumstances of the ease to maintain this suit in equity for an injunction as it was his duty first to establish his right at law; that the defendants were entitled to a trial by jury on this and that a court of equity should not use its powers in behalf of the defendants asserting this right until the right was clearly established.

In a suit in equity, this court, as an appellate tribunal, is charged with the duty of determining it, under the evidence, on the very right of the case, irrespective of the conclusion arrived at by the trial court. We have read all the testimony as abstracted with great care, aided also by the printed statements and oral argument of counsel. Apparently we have all the testimony before us that was before the trial court. Without attempting to set out the evidence at length, we have, as we think, given the essential facts.

At the outset we are compelled to say that the injunction granted on final hearing is entirely to broad within the case made by the petition and in proof. After finding that there was - a partnership and that neither of the defendants had any right to sever the main telephone line extending from Edina to Colony, the decree proceeds to enjoin defendants and each of them perpetually “from in any manner cutting and severing tire telephone wire or wires of the Edina and Colony telephone line, extending from the city of Edina along and near the public road known as the Edina and Colony public road in the county of Knox, in the state of Missouri, to the town of Colony, and from cutting down and removing or destroying the posts and wire constituting said telephone line.” This was completely outside of the issues and facts in the case. The issues were confined to the acts of defendants as against this plaintiff; the only possible judgment would be one restraining these defendants from' cutting off plaintiff from the use of the line. Hence the decree is erroneous in that it is broader than warranted by the .pleadings and facts. If the only error was in the form of the decree, we could correct that here or remand with directions to correct it. But we hold that on the facts, plaintiff was not entitled to any decree.

Obviously the trial court disposed of the case on the theory that the plaintiff and defendants and other members of the association were partners, and the line partnership' property. That was error. The association of which plaintiff and defendants were original members, and which originally constructed the line, was of the kind which has been held by our court in Meinhart v. Draper, 133 Mo. App. 50, 112 S. W. 709, not to be a partnership. It is not pretended to be a corporation, although operated under what is ordinarily the name of an incorporated association. It was a mere voluntary association, originally formed for the purpose of constructing, maintaining and operating a line of telephone from Edina to Colony, not for profit but for the convenience of the individuals composing the association. Under such a state of facts the law applicable to the determination of the rights of partners has no place, even admitting that it was here correctly applied.

"What the term or duration of the original association was to "be, how long it was to continue, by what rules it was to be governed, does not appear from any articles of agreement in evidence. Even if a partnership, it could be dissolved at will by any partner, subject to the right of accounting (1 Collier, Part. [6 Ed.], p. 149, sec. 101), and in some cases to liability for damages. [Gaty v. Tyler, 33 Mo. App. 494.] Undoubtedly, as shown by the evidence, the original idea was that the line from Edina to Colony was to be owned in common. Each member and, apparently, even outsiders, contributed to its construction, and all the members contributed to its maintenance. The associates were originally owners in common, using the word common in its technical acceptation. But it appears beyond dispute that a few years — to be more accurate, about five years — after the formation of the association and the construction of the line, that is on the 30th of October, 1906, at a meeting of the associates, at which meeting plaintiff appears to have been present, a new arrangement was made, as we have seen, which set off the shares of the associate members in severalty. Plaintiff himself acknowledges the existence of this arrangement and that it was carried into effect. In point of fact, one of his complaints against defendant White is that when the line along one of these sections broke down on the 21st of May, 1908, White, as president of the company, was aware of it and had not caused it to be repaired.

It is not clear just what part of the old line continued to be held in common but whatever there was of it was put up at auction by a vote of the members of the association who were present at a meeting held on the 29th of June, 1908, and at that same meeting the association, incorrectly designated as a partnership, was dissolved. That was the meeting of June 29, 1908'. The portion held in common was thereupon sold to T. R. White. At' a former meeting held on January 9, 1907, it had been resolved that when there was any share of stock of the company for sale that the company should set the price and should have the refusal of the right to purchase. These acts unmistakably show that all parties to the association recognized it as a fact, that there had been a partition of the line into several shares. When that part of the line undivided, apparently from the schoolhouse into Edina, which remained in the company, was sold in June, 1908, to Mr. White, the old association appears to have been dissolved or to have gone out of business, at least there was no other or further record of any proceedings after this meeting of June 29, 1908, introduced in evidence. Whether, in the absence and without the consent of all, the original association could be dissolved, need not be determined here. It was in fact then dissolved and the property, the line, divided among the members. It is claimed that this action was not to be binding on the member who was absent. No record shows this. But, if true, that member does not appear to have taken any steps in disaffirmance. If plaintiff, by that division, was wrongfully ousted and his property wrongfully appropriated, his remedy is at law. At all events, he must first establish his right at law, and until then he has not such a clear legal right as warrants the interposition of a court of equity. [Skrainka v. Oertel, 14 Mo. App. 474.] Independent of that right of action, plaintiff would have his remedy to prevent threatened and irreparable injury, if he had acted promptly, and his own hands were clean. But we do not think that, in this case plaintiff’s alleged injury was beyond reparation in damages, for he has himself, in answer to the direct question of his own counsel, having first stated that he considered the damage done him by being deprived of the use of the telephone to be inestimable, after-wards, on his counsel insisting that he fix some amount, stated that he fixed it at $500. This, in addition, as we understand it, to the amount he claimed he had been put to by the way of outlay fox work and labor, the telephone, poles and wire. Hence by plaintiff’s own testimony he has an adequate remedy at law in an action for damages.

In addition to this we hold that the plaintiff has been guilty of such laches as bars his right to appeal to a court of equity. He knew, on the 29th of June, 1908, that the members of the association — all present but one — had voted to dissolve. Pie was notified on the first day of July following that he would not be allowed to connect with the line as reconstructed and as taken possession of by other members of the association under that resolution of June 29, 1908. He delayed until the 16th of December, 1908, before commencing this action. Under the circumstances that delay was too long to entitle him to apply to a court of equity for relief.

Nor does plaintiff come into court with clean hands. He not only delayed to apply to a court for relief but in the meantime undertook, on numerous occasions, to right his own wrong and redress his own grievances. More than that, and not content with redressing his own wrongs, according to his own admissions and testimony, he did it at the expense of the connection of other members of the association with the line. One so acting does not come into a court of equity with clean hands and is not entitled to the relief of a court of equity. [Little v. Cunningham, 116 Mo. App. 545, l. c. 549 et seq., 92 S. W. 734.] These acts of his were acts directly connected with and relating to the subject-matter of this litigation-; that is to say, the maintenance of this telephone line. Hence the maxim is distinctly applicable in this case. [Hingston v. Montgomery, 121 Mo. App. 451, l. c. 462, 97 S. W. 202.]

Nor were these acts of plaintiff in disconnecting three of the defendants from the line,, cutting them off, cutting into it himself for his own convenience, joining his own line to it to the detriment of others, mere acts of inadvertence, or mere casual occurrences. According to plaintiff’s own testimony, he did this upon several occasions when he desired to carry on communication over the line for his own use and benefit. Under such facts, plaintiff was himself a wrongdoer and the maxim applies in full force. [Burnham v. Rogers, 167 Mo. 17, l. c. 24, 68 S. W. 970.]

Our conclusion upon the whole case is that the learned trial court committed error in awarding the relief and granting the injunction. The judgment of the circuit court is reversed and the cause remanded with directions to vacate both the temporary and permanent injunction and to dismiss the case at the cost of the plaintiff, respondent here.

Nortoni and Caulfield, JJconcur.