Kleinschmidt v. Steele , 15 Mont. 181 ( 1895 )

De Witt, J.

— The defendant, Steele, is an assignee for the benefit of the creditors of Hanley and Carter. The plaintiff, Kleinschmidt, is a creditor of Hanley and Carter.. Plaintiff brought this action in the district court against the assignee and the assignors. A demurrer to the complaint was sustained, on the ground that the same did not state facts sufficient to constitute a cause of action. The appeal is taken from the judgment.

Different counsel for plaintiff and appellant appear in this court than in the district court, and there is not entire harmony in their views as to the nature of the action or the relief which plaintiff shows himself entitled to under the allegations of his complaint. But we will first examine the prayer of the complaint and ascertain whether matter is set up in that pleading entitling the plaintiff to the relief asked in the prayer. The prayer is as follows:

“ Wherefore plaintiff prays, on behalf of himself and the other creditors of said firm, that the above-named assignee, A. J. Steele, be required to forthwith make and file in this court a schedule of the assets of said assignors which have come into his hands; 2. That he be required to give bonds in such sum as may be fixed by this court, and to such person as the court may designate, for the faithful discharge of his duties as assignee; 3. That he be required to deposit in the Montana National Bank of Helena, Montana, such moneys as he receives as assignee; 4. That the court interpret the meaning and significance of said assignment, and by an order authorize said Steele to pay tlie creditors of said firm pro rata in accordance with the amounts of their several claims, and that the court further declare that there are no valid preferences mentioned and specified in said assignments; 5. For such other and further relief as to the court may seem meet aud equitable in the premises; 6. That the court take immediate jurisdiction and cognizance of this assignment, and, by proper orders entered from time to time, as above set forth, equitably administer upon the rights of the parties interested in the assets of the said assignors.”

As to the first item of the prayer, that the assignee should be required to make a schedule of inventory of the assets: the only matter in the complaint upon this subject is the statement that the plaintiff is informed and believes that the assignee has not made an inventory. It is not alleged, even on information and belief, that no inventory has been made. It is not alleged (nor is it even alleged that plaintiff is informed and believes) that it had been requested. All that appears is that plaintiff had some information, which he believed, that the inventory was not made. He could easily have verified his information. He can scarcely expect the court to set its machinery in motion to do for him that which, for all that appears, may have been already done, and which, in any event, he could have had for the asking.

The same views may be expressed as to the plaintiff's prayer that the assignee deposit all moneys which he collects in the Montana National Bank. It appears by the complaint that the Montana National Bank was a large creditor of Hanley & Co., and that the bank offered, in effect, to remit certain interest on their account if the assignee would deposit his collections with the bank. The complaint does not state that the assignee is not so depositing them already.

The plaintiff asks that the assignee be required to give a bond. But the allegations in support of this prayer are in about the same condition as those above discussed. There is no allegation whatever of the assignee's financial condition, nor any statement that he is not amply able and willing to account for all of the assets of the assignment.

As to the fourth item of the prayer plaintiff wishes the assignment interpreted, and that the court order Steele to pay the creditors pro rata instead of by preferences. This prayer is based upon the fact that the assignment is made with preferences, and refers to the schedule “A” annexed to the assignment, which contains the preferences, whereas, the fact is that the schedule of preferences annexed is called “B” instead of “A” But there is only one schedule annexed to the assignment, or referred to therein, and there is no possibility of mistaking what the schedule is. This we believe is purely a clerical error and wholly immaterial, and by no possibility misleading to any one.

We do not think that the complaint shows ground for granting any of the relief set out in the prayer.

But the prayer of an equity pleading does not conclude the pleader, and he may have such relief as he shows himself entitled to. (Davis v. Davis, 9 Mont. 267.)

Counsel now call our attention to other matters in the complaint which they claim entitle plaintiff to relief. One is that the court fix the compensation of the assignee at some reasonable sum. This they ask because the complaint alleges that plaintiff is informed that the assignee stated that he had accepted the assignment for the purpose of making such profits as were possible. There is no showing that the assignee stated that he intended to make any unjust or wrongful profits, or that he threatened to. In fact there is no allegation about it at all. There is nothing but the allegation that plaintiff’ is informed that the assignee made this statement. And he does not even say that he believed this information.

There is much in the brief and argument of the later counsel in this case to the effect that the complaint shows that the assignment was fraudulent. We do not concede that the complaint makes such a showing, but, without discussing that matter, the fact is, that the plaintiff stands upon the assignment, he affirms it, and asks to have it administered and carried out. As noted above, he wishes an inventory filed, a bond given, compensation fixed, and he wishes to have a pro rata share, without preferences, as set out in the assignment. He certainly cannot ask the court to enforce the assignment in all respects but in one particular, and at the same time claim that it was fraudulent.

We are satisfied that the complaint does not, in any respect» state a cause of action against either the assignee or the assignors. The judgment is therefore affirmed.

Affirmed.

Pemberton, C. J., concurs. Mr. Justice Hunt, having tried this case as district judge, does not participate in this decision.