"It is clear that if the remedy of Domingo was complete at law, he had no right to take the case from a jury and bring it before the chancellor. But was his remedy as complete at law as in equity? The note was payable to Getman or order, and was assigned by him to Rhodes after due. It was, therefore, liable to the same defense in the hands of any other party as it was in the hands of Getman. But had the fraud been set up at law, Rhodes could have at once discontinued his suit and kept the note hanging over the maker for years. It might have been assigned to another party, residing in another portion of the state, who could have harassed the maker by a suit commenced in the county where the assignee resided. The case was a proper one for equitable relief. If the facts stated in the bill were true, the maker had the right to have the note canceled, so as to prevent all future litigation." ing said note for $70,000, and that said trust, J., delivered the opinion, Field, J., concurring, company has ordered the clerk of said Butler the court said: county circuit court to dismiss in vacation said prior suit pending in said court on said $70,000 note against the plaintiffs, which will work irreparable injury to plaintiff, result in a multiplicity of suits and long and vexatious litigation, and entail a great expense upon plaintiff in defending said action. The prayer in the petition before us is that the Mississippi Valley Trust Company be enjoined from disposing of said note or instituting other suits against plaintiffs thereon or further prosecuting said suit instituted in the circuit court of the city of St. Louis, until this case can be adjudicated on its merits; that this suit be consolidated with said cause on said note then pending in said circuit court of Butler county and set for trial April 15, 1920; and that defendant herein be required to produce said $70,000 note, which it still has under its control, and that the court by its judgment declare said note to be null and void, and for general relief. It is true that, at the time this suit was filed, said note was due and was nonnegotiable, and ordinarily a defendant in a suit at law thereon would have had an adequate remedy therein by being able to defeat said suit at law brought on said note. But there are exceptions to this general rule. If it appears that the holder of such note intends to harass the defendants with litigation or dismiss suits thereon to be brought over again at some other time or in some other jurisdiction to the inconvenience or disadvantage of the defendants against whom such void note is asserted, the legal remedy of a defense thereto, when sued thereon at law, is not complete and adequate to promote the ends of justice, and equity will intervene and entertain a suit to declare said note void and to cancel and require the surrender thereof. 6 Cyc. 292, par. 6, is as follows: "As a general rule, sustained by a preponderance of authority, a suit will not be sustained to cancel a nonnegotiable instrument to which a defense may be made in an action at law thereon, unless some substantial reason is as signed showing that the defense at law is an insufficient protection. This is especially true where an action at law, upon the instrument is actually pending." In Porter v. Jones, 6 Cold. (Tenn.) loc. cit. 318, 319, the court said: "In the class of cases embracing the present one, the relief afforded by perpetually enjoining the prosecution of suits upon the void instrument, and by decreeing it to be canceled and complete than any that can be afforded by and delivered up, is deemed more efficacious a court of law. "It is true that a final judgment for the defendant in a court of law, in a suit upon such an instrument, would be a complete settlement of the case, and would preclude the necessity to the defendant, of further relief in regard to it. But the plaintiff may not choose to commence such a suit; he may harass the maker of the instrument, with threats of litigation for itations. Or, if a suit be already commenced, an indefinite period, within the statute of limthe plaintiff may not only harass the defendant during the progress of the suit, but may, at his pleasure, withdraw it, for the purpose of again selecting his tribunal, and fit time for the commencement of new litigation; 2 Story Eq. Jur. §§ 699, 700. "And though the instrument be void upon its face, so that no suit could, by possibility, be sustained upon it in a court of law, still as its existence may be made use of to harass the party, it has frequently been held that and delivered up. Jones v. Perry, 10 Yerg. 59, courts of equity will decree it to be canceled 83; Almony v. Hicks, 3 Head. 41; and Johnson v. Cooper, 2 Yerg. 531; Hamilton v. Cummings, 1 John. Ch. 522. But the ju But in a note to the last paragraph above risdiction of courts of equity, to decree the canquoted, on page 293, it is said: cellation of void instruments, where, as in this case, the invalidity does not appear upon the face of the instrument, even though a defense may be made at law, is now too well settled for dispute." "Limits of rule. But where the plaintiff in the legal action might at any time withdraw it and bring another at his convenience, the defense at law was not considered an adequate protection. Domingo v. Getman, 9 Cal. 97; Buxton v. Broadway, 45 Conn. 540; Ferguson v. Fisk, 28 Conn. 501; Porter v. Jones, 6 Coldw. (Tenn.) 313." An examination of the cases cited in said note fully sustains the exception or limitation to the general rule therein announced. In Domingo v. Getman, 9 Cal. 102, Burnett, In Buxton v. Broadway, 45 Conn. loc. cit. 541, the court, per Park, C. J., said: "If the petitioner could compel the respondent to prosecute to final judgment the suit he has commenced on the note in question, then it might be said with truth that he has adequate remedy at law for the grievances set forth in his bill. But the petitioner has no such power It over the respondent or the suit; neither does the law furnish him any means of acquiring it. The suit is under the entire control of the respondent, who may withdraw it at any time before the verdict of a jury or a finding of the facts by the court; and, abiding his time, he may take an unconscionable advantage of the petitioner when his witnesses are dead or have been scattered to parts. unknown, or when the facts with regard to the fraud shall have faded from their memory. The note has 17 years of life from its date; and if it be true, as is set forth in the bill, that it was obtained from the petitioner by fraud, it may well be expected that the respondent will use all the means in his power to prevent the petitioner from exposing its character on the day of trial; and to this end he will take all the advantage to be gained by delay to accomplish his purpose. is clear therefore that we cannot take into account the fact that there is a suit at law now pending between the parties in determining whether the petitioner's remedy at law is 'obvious, adequate and complete.' (Church, J., in Chipman v. City of Hartford, 21 .Conn. 488.) On that question we can consider only what means of redress the law itself furnishes the petitioner, and not what he may chance to get through the indulgence of the respondent. In the case of Ferguson v. Fisk, 28 Conn. 501, which was a suit in chancery to compel the respondent to cancel and deliver up a draft, the consideration of which had entirely failed, a suit at law, brought to recover the amount of the draft, was at the time pending between the parties. Still Judge Sanford, in giving the opinion of the court, regarded the fact of no importance, and dismissed it with the remark that the suit might at any time be withdrawn by the respondent and another brought at his convenience. The fact of the pendency of the suit at law in the present case, though strenuously urged upon us in the argument, we lay out of our consideration, in view of the fact that it may be withdrawn by the respondent at his pleasure, and another brought at a time when an unconscionable advantage may be taken of the petitioner." The learned judge then quotes the following from section 700 of Story's Eq. Jur.: "If an instrument ought not to be used or enforced, it is against conscience for the party holding it to retain it, since he can only retain it for some sinister purpose. If it is a negotiable instrument, it may be used for a fraudulent or improper purpose, to the injury of a third If it is a mere written agreeperson. ment, solemn or otherwise, still, while it exists, it is always liable to be applied to improper purposes; and it may be vexatiously litigated at a distance of time when the proper evidence to repel the claim may have been lost 89 or obscured; or when the other party may be disabled from contesting its validity with as much ability and force as he can contest it at the present moment." In the instant case, the intention of the holder of the note to institute and dismiss and reinstitute suits thereon and harass the parties against whom the illegal note is asserted is not left to conjecture, but after suit thereon in Butler county, where the defendants resided, it appears plaintiff brought another suit thereon in the city of St. Louis, be fore dismissing the case in Butler county. And then, after defendants filed their answer and counterclaim in Butler county and the case was set for trial on the docket, ordered the clerk in vacation to dismiss the suit in Butler county. The note had ten years to run before it was barred by the statute of limitations, and the plaintiff could thus continue to bring and dismiss suits on said note at different times in Butler county or in the city of St. Louis, whenever defendant would visit that city during said ten years. Under such circumstances, the defendants' evidence of their defense which all rested in parol, through the death or absence or disability of witnesses, might be lost and defendants greatly inconvenienced and put to disadvantage in making out their defense in a suit at law on said note. We therefore hold that the petition herein stated a cause of action in equity, and that the plaintiffs are entitled to the relief sought (except to prevent the dismissal by the plaintiffs therein of said prior suit on said note in said Butler county), including the consolidation of this suit with the counterclaim or cross-bill in said former suit in Butler county for the purposes of trial and disposition thereof. The result is, we reverse the judgment on said demurrer of the defendant Mississippi Valley Trust Company, and remand the cause for further proceedings according to the views herein expressed. But the judgment in favor of defendant McGuire is affirmed. BROWN, C., not sitting. PER CURIAM. The foregoing opinion by SMALL, C., is adopted as the opinion of the court. All the Judges concur, except JAMES T. BLAIR and GRAVES, JJ., who dissent. HOME INS. Co. v. PARTNEY et al. (No. 3263.) rates from the date of the policy up to the time it is received for such cancellation." The effect of this arrangement which is (Springfield Court of Appeals. Missouri. May made under this contract is treating the note 10, 1923. Rehearing Denied May 28, 1923.) Insurance 238(1)—Insurer held entitled to recover on premium note. Where a note by assured for premium on delivery of a policy is subject to the terms of the policy, that in case an installment is not paid liability of insurer ceases during the time it remains unpaid, and that the assured may cancel when the premium or note or obligation therefor has been actually paid in cash, in which case the company shall retain the usual short rates from the date of the policy up to the time it is received for such cancellation, the effect is to treat the note as so much cash paid when policy issued, and if assured desires to cancel he may do so and receive his short rate return, and the contract is a valid one. given as so much cash having been paid when the policy was issued, and that if the assured desires to cancel he may do so and receive his short rate return. It has been held that although this may be a harsh contract so far as the assured is concerned, it is one that he made and one that the courts cannot remake for him. The plaintiff is entitled to a judgment against the defendants for the balance due on these four installment notes together with a reasonable attorney's fee. The verdict of the jury was rendered in this case for that amount, and the trial court erred in sustaining a motion for a new trial. See American Insurance Co. v. Klink, 65 Mo. 78. It is therefore the order of this court that the judgment granting a new trial be set aside, Appeal from Circuit Court, Carter County; and that the trial court enter a judgment for E. P. Dorris, Judge. Action by the Home Insurance Company against William Partney and another. Verdict for plaintiff, and from an order granting new trial plaintiff appeals. Order set aside, and judgment ordered for plaintiff. Garry H. Yount, of Van Buren, for appellant. J. L. Huett, of Van Buren, and S. L. Clark, of Eminence, for respondents. plaintiff for the amount of the balance due on the notes and $25 which was agreed upon between the parties as a reasonable attorney's fee. COX, P. J., and BRADLEY, J., concur. STATE v. HOGAN. (No. 3347.) (Springfield Court of Appeals. Missouri. Sunday 5-Selling groceries on Sunday FARRINGTON, J. This appeal is taken from an order made by the trial court granting a new trial. The suit was brought on a promissory note payable in four installments of $50.76 each, beginning on January 1, 1921, an installment being due on the 1st day of each succeeding January. The note was giv- Where defendant sold groceries, meats, and en on one of appellant's usual forms for a feed to those who desired to buy them without policy of insurance known as a Farm Install-regard to the question of immediate necessity, ment Policy-Fire and Lightning. The same policy and the same note have been in the courts several times. See Home Insurance Co. v. Hamilton, 143 Mo. App. 237, 128 S. W. 273; Home Insurance Co. v. Fleeman (Mo. App.) 217 S. W. 536; Home Insurance Co. v. Horrell et al., 206 Mo. App. 352, 227 S. W. 830; and a similar note and question were presented in the case of Continental Insurance Co. of N. Y. v. Phipps (Mo. App.) 190 S. W. 994. The note is signed and delivered by the assured when the policy is delivered, and, under the terms of the policy, in case any in-stallment is not paid, all liability ceases during the time that it remains unpaid. A provision in the policy provides as follows: "The assured may also cancel when the premium, or note, or obligation given for such premium has been actually paid in cash, in which case the company shall retain the usual short he was guilty of violating Rev. St. 1919, 3599, prohibiting the exposing for sale on Sunday of goods not within the exceptions enumerated in section 3600; "exposing for sale" meaning keeping and showing for the purpose of selling. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Expose.] Appeal from Circuit Court, Newton County; C. L. Henson, Judge. L. C. Hogan was convicted of violating the BRADLEY, J. Defendant was charged by information with the violation of section 3599, R. S. 1919. It is charged that in the county of Newton and state of Missouri on For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (252 S. W.) February 12, 1922, defendant did willfully, and medicines under section 3600. State v. and unlawfully on the said 12th day of Feb- Ohmer, 34 Mo. App. 115. Discussing the subruary, the same being the first day of the ject the court there said: week, commonly called "Sunday," keep open a certain grocery store, and expose and offer for sale goods, wares, and merchandise. A jury was waived and the cause tried before the court. Defendant was found guilty, and his punishment fixed at a fine of $25. After the usual motions he appealed. It About the only defense at the trial was that defendant is a Seventh Day Adventist and observed Saturday as the Sabbath. was admitted that he kept his grocery store open on the day charged during the usual business hours. The evidence shows that he sold groceries, meats, and feed. One witness stated that he bought some feed for his team under circumstances which may be said to constitute an immediate necessity. Defendant was charged under section 3599, R. S. 1919, which prohibits, among other things, the exposing to sale of goods on Sunday. Section 3600 excepts from the provisions of section 3599 drugs and medicines, and provisions and other articles of immediate necessity; but there is no exception for members of a religious society by whom some other day than the first day of the week is observed as the Sabbath, as there is to section 3596 relating to work and labor. R. S. 1919] under consideration was to close "The object of the statute [now section 3599, up all places of business and prevent ordinary traffic on Sunday. But the Legislature did not intend that this law should apply to the sale of drugs or medicines, or for obvious reasons; nor was it the intention of the Legislature that this law should apply to and prohibit the sale of articles of food or other necessary articles, when the necessity for the same was 'necessity,' spoken of, must be of such a charurgent and immediate. And we think that the acter that it could not reasonably have been foreseen or guarded against. To hold otherwise would result in the general sale of all kinds of food and any other articles of necessity on the Sabbath." Defendant in effect admitted that he exposed for sale his entire stock. He sold to those who desired to buy without regard to the question of immediate necessity. His demurrer was properly overruled. The judgment below should be affirmed, and it is so ordered. COX, P. J., and FARRINGTON, J., concur. Defendant was charged under section 3599 with exposing to sale goods, wares, and merchandise. Section 3600 provides that section 3599 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity. one is exempt from the provisions of section (Springfield Court of Appeals. Missouri. May 3599 except as is provided in section 3600. No CITY OF SPRINGFIELD ex rel. PEOPLE'S 10, 1923. Rehearing Denied 1. Municipal corporations 564-General, not special, statute of limitations held to apply to enforcement of sewer tax bills. The general five-year statute of limitations (Rev. St. 1919, § 1317) governs actions to enforce sewer tax bills issued under section 8305, and not the limitation for certain tax bills prescribed by section 8323. 2. Limitation of actions 15 - Promise to expiration thereof In this court defendant does not rely upon the exceptions to members of a religious society who observe some day other than the first day of the week as the Sabbath, but contends that what he sold should be construed as immediate necessaries. State v. Campbell, 206 Mo. 579, 105 S. W. 637, is relied upon. Defendant in that case was charged under the same section as is defendant in the cause at bar. There the charge was limited by instructions to the exposing of lemons for sale. An instruction in that case defined "expose for sale" as the keeping and showing for the purpose of selling, and again defined the term in another instruction to mean "to place in view with the purpose and intention of selling." These definitions are not approved or disapproved in the opinion, but we think them correct. The court in the Campbell Case held that lemons are both a medicine and a food, and fall within the exceptions of what is now section 3600. In the only in the sense that personal judgment cancase at bar defendant exposed to sale gro- not be rendered against the landowner, and in ceries, meats, and feed. Neither of these as every other way the suit is in the nature of a matter of law is excepted. Either may a personal action, in that the tax bill must be fall under provisions, but provisions are not issued against the owner, and the defendant excepted as a matter of law, as are drugs must be the owner of the land. A promise not to avail oneself of the statute of limitations made after the debt is barred is without consideration. 3. Municipal corporations 558-Suits to enforce tax bill actions in rem only to extent of precluding personal judgment. A suit to enforce tax bills such as special tax of a sewer district are actions in rem For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. Limitation of actions 175-May be walved | Sweeney, the contractor, in payment for the unless carrying its own special limitation pro- work in the construction of the sewer. The vision. People's Bank is the assignee of said tax The statute of limitations may be waived bills. On August 29, 1914, the defendant here unless the action is governed by a statute car-instituted suit to have said tax bills canceled rying its own special limitation provision. and declared void. That cause finally reach5. Municipal corporations 564-Particular ed this court, and was disposed of August statute held one of extinguishment rather 23, 1920, adversely to the present defendant. than one of repose. See Deming v. City of Springfield et al. (Mo. Sup.) 217 S. W. 27, and Deming v. City of Springfield et al. (Mo. App.) 224 S. W. 1004. Rev. St. 1919, § 8305, as amended by Acts 1921, pp. 501, 502, carrying a special five-year limitation for the lien of tax bills, is as amended a statute of extinguishment rather than a statute of repose. 6. Municipal corporations 560-Assignee of sewer tax bills may sue to enforce the lien. Unless there is some provision of law prohibiting the sale of a tax bill, the courts would not deprive the contractor from selling, and shut an assignee out of court who owned the tax bill because he had not been specially named in the statute. 7. Limitation of actions 179(1)-Petition alleging agreement waiving statute not demurrable for failure to allege written waiver. A petition in an action to enforce the lien of a district sewer tax bill alleging a promise by the defendant not to plead the statute of limitations was not subject to demurrer because it did not allege that the promise was in writing; the allegation being broad enough to permit proof of written agreement. 8. Limitation of actions 13-Lot owner held bound by agreement not to plead limitations to action on special tax bill. If the owner of a lot on which there was a lien of district sewer tax bill, enforcement of which was governed by general statute of limitations, made a valid agreement not to plead statute of limitations, he is estopped when sued on the bill from making such plea. Bradley, J., dissenting. The first suit concerning these tax bills will be hereinafter referred to as the suit to cancel. The ground of defendant's demurrer is that plaintiff's cause of action is barred by the statute of limitations. Plaintiff in the cause at bar recites in his petition the history of the litigation in the suit to cancel, and avers, in an effort to avoid the statutes of limitations, that, while the suit to cancel was pending in the appellate court, and prior to April 15, 1919, the end of five years from the date of issue of the tax bills, the defendant at divers times promised and assured plaintiff that, if the judgment of the appellate court in the suit to cancel should be adverse to him he would pay each and all of said tax bills without further cost and litigation; that prior to April 15, 1919, defendant "requested plaintiff not to institute suit on said tax bills, or either of them, agreeing in consideration therefor to pay each of said bills upon the final decision of the appellate court aforesaid, if said decision should be adverse to him, and at the time of making said promise the defendant stated if plaintiff would refrain from instituting a suit for the collection of said tax bills until after the final determination of the case pending in the appellate court he would not claim as a defense the statute of limitations if the decision of the appellate court was not Appeal from Circuit Court, Greene Coun-made prior to the running of said statute; ty; Guy D. Kirby, Judge. that the plaintiff believed at the time the defendant made the representations aforesaid Action by the City of Springfield, on the that he was in good faith, and believed he relation of the People's Bank of Springfield, would carry out each and all of said repreagainst R. C. Deming. From a judgment sus-sentations, and by reason thereof, and so betaining demurrer to the petition, relator ap- lieving, did not file any suit for the enforcepeals. Reversed and remanded. ment of the lien of said tax bills prior to C. W. Hamlin and Hamlin & Hamlin, all the 15th day of April, 1919." Plaintiff furof Springfield, for appellant. John Schmook, of Springfield, and J. C. Counts, of Oswego, Kan., for respondent. FARRINGTON, J. This cause was commenced to enforce an alleged special lien founded upon district sewer tax bills. A demurrer to the second amended petition was sustained, and relator appealed. Relator will be referred to herein as plaintiff and respondent as defendant. ther alleges: "That from the acts, declarations, promises, and representations of the defendant he waived his right prior and subsequent to April 15, 1919, to plead or claim the defense of the statute of limitations in this action, and that by reason of his said acts and statements he is now estopped from pleading as a defense the statute of limitations, and from making same against the collection of the tax bills aforesaid." The demurrer is defended on three grounds: Plaintiff's petition is in 21 counts, each First, defendant contends that the five-year count based upon a separate tax bill against limitation prescribed for certain tax bills in separate lots. The tax bills were issued April section 8323, R. S. 1919, is applicable to the 15, 1914, and originally given to one Mc-tax bills involved here, and not the general For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |