Schenck v. Sterling Engineering & Construction Co.

Barnes, J.

The appellant is in a somewhat embarrassing situation. Two parties are claiming full compensation from it for performing the same service. Each claims to have secured the purchasers, and.neither admits that the other is entitled to any part of the compensation alleged to he due for the services rendered. Separate trials of the two actions may result in two judgments which will obligate the defendant to pay twice for the same service. To relieve itself from this dilemma, the defendant sought to enjoin the prosecution of one of the actions and to bring all of the parties before the court in the other, so that the plaintiffs in both actions would be bound by the judgment in the. one first rendered.

Both cases are straight actions at law on contract. We must look to the Oode to see whether or not the remedy here pursued is permissible. Obviously a situation is presented where it might be proper enough to consolidate the two actions. It is just as obvious that the general consolidation statute (see. 2792, Stats. 1898) does not help the defendant, because it provides for the consolidation of only such actions as might originally have been properly joined. These two actions could not have been joined. Winninghoff v. Wittig, 64 Wis. 180, 183, 24 N. W. 912; Peck v. School Dist. 21 Wis. 516.

Had the defendant admitted liability to someone for the amount claimed, its remedy would be simple enough, because sec. 2610, Stats. (1898), provides for an interpleader in such a case.

Secs. 2610 and 2656a, Stats. (1898), are relied on in support of the practice here pursued. Secs. 2420, 2600, 2656, and 2657 are 'also cited, but we see no room for the contention that any of the four sections last referred to authorize the practice which the defendant attempted to pursue. The first question presented by the appeal is: Does sec. 2610 authorize the bringing in of Feasley as a party to this action? The following is the only portion of sec. 2610 which has any application to the situation:

“The court may determine any controversy between the parties before it, when it can be done without prejudice to tbe rights of others or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, or any persons not parties to the action have such interests in the subject matter of the controversy as require them to be made parties for their due protection, the court shall order them to be brought in.”

Controversy means dispute. 1 Bouv. Law Dict. (Rawle’s Rev.) 431; 2 Words & Phrases, 1553.

The controversy between the plaintiffs and the defendant in this action arises over these questions: (1) Did the defendant employ the plaintiffs to procure a purchaser for its real estate? (2) If so, did plaintiffs procure such a purchaser? (3) If they did, what compensation should they receive ? It is very plain that it is not necessary to bring any third party before the court for his protection while these three disputed questions of fact which form the subject of controversy between plaintiffs and defendant are being litigated. It is not claimed that any other person was a party to the contract between plaintiffs and defendant. One asserts that a contract was made; the other denies it. One asserts that acting under the contract a purchaser was found and compensation was earned; the other denies this also. The settlement of these mooted questions cannot prejudice the right of a person not a party to the action to claim under another and an entirely different contract. So it seems clear that the controversy between these parties can be settled without “prejudice to the rights of others,” and that the first clause of the quoted portion of the statute does not help the defendant. The “others” therein referred to of course means persons who are not parties to the action.

If the court has a correct conception of what the controversy between the parties is, then it is' patent that a full and “complete determination” of that controversy can be had without the presence of any other party, and that no person who is not a party has any interest therein which requires that he be made a party for his protection. Every defense is available to the defendant that it would have if Feasley were before the court. It may show that it made no contract such as is claimed by the plaintiffs, and, further, that if such a contract was made the plaintiffs earned nothing under it because the purchasers were not found by the plaintiffs but were found by another party.

The material part of sec. 2656a is as follows:

“A defendant or a person interpleaded or intervening may have affirmative relief against a' codefendant, or a codefendant and the plaintiff, or part of plaintiffs, or a codefendant and a person not a party, or against such person alone, upon his being brought in; but in all such cases such relief must involve or in some manner affect the contract, transaction or property which is the subject matter of the action.”

The material part of the portion of the statute quoted might be condensed so as to read as follows: “A defendant . . . may have affirmative relief against ... a person not a party . . . upon his being brought in; but . . . such relief must involve or in some manner affect the contract, transaction or property which is the subject matter of the action.”

We think this statute does not apply because the defendant is not entitled to any affirmative relief in this action against Feasley. It is true, it attempts to set up an equitable counterclaim, but that counterclaim states no cause of action against the plaintiffs or against Feasley.

Furthermore, the relief sought does not affect the contract involved in this case. It does not even assist in determining whether or not that contract was made. It is perfectly competent for the defendant to show "that Feasley claims to have procured or did procure the purchasers, without bringing Feasley in as a party. So the relief sought would neither assist in determining whether a contract had in fact been made or whether the plaintiffs had earned the money claimed thereunder if one was made.

Does the relief asked affect the' transaction which is “the subject matter of the action ?” A “transaction” means whatever may be done by one person which/affects another’s rights and out of which a cause of action may arise. McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445. The making of the contract alleged in the complaint was the transaction ont of which the canse of action arose in the instant case. We fail to see how the relief sought affects that transaction. Bringing Feasley before the court in the present case would not tend to show that an agreement such as is relied on was not made, as has been heretofore stated. If the term “transaction” be held to include not only the making of the contract but also performance on the part of the plaintiffs, the result would not be different. Offering proof to the court and jury that another party besides the plaintiffs in fact produced the purchasers would tend to show that plaintiffs should not recover. . But the defendant can call Feasley and the purchasers in the trial of the present action and examine them fully without Feasley being a party to the action. So it is not apparent how the relief sought affects the transaction which is the subject matter of the action. The action is not brought in reference to property, so the use of that word in the statute does not affect the question under consideration.

The proceeding 'arises out of a fear on the part of the defendant that the juries impaneled in the actions may find for the plaintiffs in both of them, whereas if all the plaintiffs were before the court but a single recovery could be had. The situation presented is somewhat novel and one for which the lawmaking power has apparently made no provision that would warrant the practice here followed. This court has no power to make a new statute or to amend an existing one so as to reach a case of supposed hardship, or for any other reason for that matter.

By the Oowrt. — The order appealed from is affirmed.

The following opinion was filed December 10, 1912: