Beal v. Dodds Canning Co. , 49 Ohio App. 168 ( 1934 )

OPINION

By RICHARDS, J.

The written contract into which each plaintiff entered with The Dodds Canning Company is no more than a contract to grow corn and sell it to the company at a fixed price named. On delivery of the corn, it became the property of Tire Dodds Canning Company, and, under the law, that company could lawfully do whatever it chose with the corn. It was under no obligation to can the corn. It might, if it chose, give the corn away, for there is no averment in the amended petition that The Dodds Canning Company is insolvent. It is true that the pleading contains averments that the defendants, in what they did, acted fraudulently, but there are nú averments of facts showing what, if any, fraud was committed. It is indeed pleaded that the defendants knew that the corn had not been paid for to the growers, but it is not fraudulent to buy a product which has not been paid for, nor accept warehouse receipts secured on such product.

It appears from the pleadings that The Dodds Canning Company was indebted to The Continental Can Company for cans furnished, and to other named defendants in substantial amounts, and these warehouse receipts were made to secure that indebtedness.

We cannot discover in the amended petition any averments stating ■ an equitable cause of action against any of the defendants, ■ nor. does that pleading state a 'cause of action except against the,defendant The Dodds -Canning Company to recover the purchase price-of the com.

•The contract of each grower was entirely separate and independent from that of all the others, and it -was in no sense dependent upon the others. It is therefore clear that, there- is a misjoinder of parties plaintiff.- There is also a misjoinder of causes of action, and a misjoinder of parties defendant.- The only legal right shown by the pleading to exist in the plaintiffs is the right to recover of The Dodds Canning Company the price of the corn -sold. ■

, .The Court - of , Common • Pleas sustained the demurrers -on- the- ground • that -the amended petition failed to stater a cause of action.; As-to-the.questionof.-alleging a c,ause of-action: for equitable relief by way of .declaring an equitable lien on. the finished product • and an accounting,-. the trial court wa-s correct .in sustaining a demurrer, but'this -would not. justify the dismissal of the -petition, as there are allegations sufficent to sustain ■ an action at law for the debt, if the parties are properly joined. However, the parties aré''misjoined if the amended petition stands as an faction at law; and the demurrer should be sustained.

There being no cause of action alleged entitling -plaintiffs to the equitable relief sought,' and 'the' parties plaintiff being improperly joined in an.action at law, it follows that the judgment of the Court of Common Pl'eas should be affirmed, and -the-cause -remanded to the Court of Common Pleás with'instructions to permit the filing df separate actions-at law'-úpon application' therefor within- a reasonable time. • • .

■ ''Judgment- affirmed,.

HAMILTON -and': ROSS, JJ,' concur.