
    Beal et al. v. The Dodds Canning Co. et al.
    (Decided June 25, 1934.)
    
      Mr. Frank Brandon and Messrs. Maple & Maple, for plaintiffs in error.
    
      
      Mr. Howard Ivins, Mr. G. Luther Swaim and Messrs. Pogue, Hoffheimer & Pogue, for defendants in error.
   Richards, J.,

of the Sixth Appellate District, sitting by designation in the First Appellate District. This case was disposed of in the Court of Common Pleas of Warren county by sustaining demurrers to the amended petition on the ground that it failed to state a cause of action. Thereupon, the plaintiffs not desiring to plead further, the petition was dismissed.

The plaintiffs in error are Frank Beal and two others, each of whom had a separate contract with The Dodds Canning Company to grow for it during the year 1931 a certain number of acres of sweet corn, and to sell the same to the company for a certain fixed price per ton. Payment for the corn was to be made on or before October 15,1931. It appears from the amended petition that the corn was grown and delivered to the above-named company, pursuant to contract, but that no payment has been made therefor.

The defendants in addition to the Dodds Canning Company are E. L. Dutton, The Continental Can Company, The Lebanon-Citizens National Bank & Trust Company, and The Guardian Warehousing Company.

The petition avers in substance that the action was brought for the benefit of the plaintiff and all other growers for The Dodds Canning Company. It also avers that approximately 30,000 cases of corn were packed that season by said company, and that 25,000 cases were warehoused with the defendant Guardian Warehousing Company; that of that amount warehouse receipts for some 4,000 cases were issued to the defendant Dutton, 14,790 issued to the defendant The Continental Can Company, and 5,600 to the Lebanon-Citizens National Bank & Trust Company.

It is averred that the corn was unlawfully and fraudulently warehoused with the warehousing company, and that the receipts were fraudulently issued by it to the defendants, as above named, they knowing that the corn had not been paid for.

The plaintiffs ask an accounting and judgment against The Dodds Canning Company, that the other parties defendant be required to account, and that the amount found due be applied to the payment of the claim due the plaintiffs, who claim an equitable lien on the pack of corn.

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 The 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 no 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, that is, to the growers, but it is not fraudulent to buy a product which has not been paid for; nor to 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 any equitable cause of action against any of the defendants; nor does that pleading state a cause of action except one against the defendant The Dodds Canning Company to recover the purchase price of the corn.

The contract of each grower was entirely separate and independent of that of all the others, and 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 existing in the plaintiffs shown by the pleading 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 state a cause of action. As to the question of alleging a cause of action for equitable relief by way of declaring an equitable lien on the finished product, and an accounting, the trial court was correct in sustaining a demurrer, but this would not justify the dismissal of the petition as there are therein allegations sufficient to sustain an action at law for the debt, if the parties are properly joined. However, the parties are misjoined if the amended petition stands as an action at law. Therefore the demurrer should be sustained on that ground.

There being no cause of action alleged entitling plaintiff 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 Pleas should be affirmed, and the cause remanded to that court with instructions to permit the filing of separate actions at law upon application made therefor within reasonable time.

Judgment affirmed and cause remanded.

Hamilton, P. J., and Boss, J., concur.  