MARK WALSER and FRANK MARGRAVE, Petitioners, v. THOMAS F. MORAN, as District Judge of the Second Judicial District of the State of Nevada, Respondent
Walser v. Moran
MARK WALSER and FRANK MARGRAVE, Petitioners, v. THOMAS F. MORAN, as District Judge of the Second Judicial District of the State of Nevada, Respondent.
[No. 2320]
MARK WALSER and FRANK MARGRAVE, Petitioners, v. THOMAS F. MORAN, as District Judge of the Second Judicial District of the State of Nevada, Respondent.
[173 Pac. 1149; 180 Pac. 492]
1. Pleading — Nature—Statutory Authority.
The only source of authority for any pleading and the rules for the construction thereof are drawn from the practice act.
2. Actios — Joinder of Causes of Action — Authority—Practice Act.
Two or more causes of action cannot be united in the same complaint, unless the joinder is authorized by the practice act.
3. Action — Joinder of Separate Causes of Action — Construction of Statute.
Practice act, sec. 97, specifying cases in which two or more causes can be joined in same complaint, is to be liberally construed, with a view to effect its object.
4. Prohibition — Nature—Correcting Errors.
The office of the writ of prohibition is not to correct errors, but to prevent courts from transcending the limitation of their jurisdiction in exercise of judicial power.
5. Statutes — Construction—Regulation of Existing Right by Negative Words.
Where an existing right or privilege is subject to regulation by a statute in- negative words, the mode so prescribed is imperative.
C. Prohibition — Excess of Jurisdiction — Statutory Restrictions.
Where a statute has imposed restrictions under which a court may act in matters otherwise within its jurisdiction, and those restrictions are disregarded, the party aggrieved may have a remedy by prohibition.
7. Prohibition — Irregularities in Exercise of Inherent Authority.
There is no remedy by prohibition for the correction of errors or a mere irregularity in the exercise of an authority inherent in a court.
8. PLEADING-DEMURRER-ADMISSIONS-MISJOINDER.
A demurrer to a complaint for misjoinder of causes of action concedes tliat the complaint states two or more good causes of action.
0. Action — Separate Causes of Action — Arising Out of Contract.
A complaint stating five causes of action, the first being for breach of employment contract, the second and third being for shares of stock alleged to have been acquired by defendants in virtue of their contractual relationship with plaintiff, or for value thereof, and fifth for a discovery and accounting from defendants of all their dealings with certain property of plaintiffs intrusted to them under an executory contract, is not bad for misjoinder; all such causes of action arising out of contract and being authorized by practice act, sec. 97, subd. 1, permitting several causes of action to be united in same complaint, when arising out of contract, express or implied.
10. Action — Joinder of Causes of Action — Common Liability of Defendants.
A complaint alleging a defendant acquired a part of plaintiffs’ property under a contract as their attorney, and that a contract with another defendant, whereby latter was to receive a portion of plaintiffs’ property, was void in its inception, because fraudulent, and praying for damages for defendants' failure to protect such property from loss, is bad, because it does not state cause of action against both defendants; the defendants being jointly liable, if at all, and the complaint showing on its face that latter defendant had no interest in property, and hence no duty of protecting it from loss.
11. Principal and Agent — Liability of Agent — Accounting.
An agent can be brought to account with his principal for moneys and property received in transaction arising out of agency relationship.
12. Pleading — Inconsistent Relief — Rescission of Contract— Damages for Breach.
Plaintiff in equity action will not be permitted to rescind a contract for fraud, and, failing in this, to recover damages for breach, and relief for violation of fiduciary obligation created by the contract; such relief being inconsistent.
ON REHEARING
1. Pleading — Complaint—Sufficiency—Civil Practice Act.
However strong grievances or wrongs may appeal to the conscience of the chancellor for correction and relief, aver-ments and allegations thereof, however varied they may be, make a sufficient complaint only when squaring with the rules of the civil practice act.
2. Pleadings — Complaint — Statement of Cause of Action— Relief.
Plaintiff is required to state in his complaint facts which constitute his cause of action and nothing more.
3. Action — Improper Joinder — Single Cause of Action.
Tlie formal chancery bills for accounting, discovery, and the like are no longer used, but the remedies are preserved, and, conceding a complaint to be a good specimen of a bill in equity, nevertheless, if it states but one cause of action, whatever else it may contain, the defendant cannot successfully demur on the ground of improper uniting of several causes.
4. Action — Single Cause oe Action.
A complaint reciting one connected history of the property affected by an agreement through a series of acts on the part of defendants which contributed to and culminated in the alleged injuries to plaintiffs, showing defendants have a connected and common interest in the one subject-matter of the action, and charging the defendants with an inexcusable disregard of a duty voluntarily assumed by their contract, while showing defendants as much liable in damages for negligent breach of contract as for violation of a trust, constitutes but one cause of action.
5. Action — Action Ex Contractu or Ex Delicto.
Where the law imposes a duty arising from the relation rather than the contract, and there is a breach of duty, the aggrieved party may sue in trespass on the case, but if there be no legal duty, except arising from the contract, there can be no election, and the party must rely upon the agreement alone, although in either case the complaint may be required to lay a previous ground by showing a contract.
6. Action — Misjoinder of Causes of Action — Contract and Tort.
The averment of negligence in the first cause of action and fraudulent dealings in the second and subsequent causes held to amount to substantial allegations of breach of agreement, and not tort, and hence there was no misjoinder.
7. Action — Prayer—Misjoinder of Causes.
Plaintiffs are entitled to such relief as they establish upon proper proof of alleged facts, and the prayer for judgment is not demurrable as asking relief upon both tort and contract.
Petition for writ of prohibition by Mark Walser and another against Thomas F. Moran, as District Judge of the Second Judicial District of the State of Nevada.
Writ granted.
On rehearing, opinion granting writ of prohibition reversed, demurrer to petition sustained,. alternative. writ discharged, and proceeding dismissed.
Cheney, Downer, Price & Hawkins, for Petitioners r
The practice act alone prescribes the rules by which the sufficiency of pleadings shall be determined. Rev. Laws, 5036; McKim v. District Court, 33 Nev. 44. Only causes of action can be joined which the statute authorizes. State v. Yellow Jacket S. M. Co., 14 Nev. 220. All of the causes joined must belong to one of the classes created by the statute. Rev. Laws, 5039; 14 St. Enc. Proc. 671; 1 C. J. 1074, 1077, 1081; De Wolfe v. Abraham, 45 N. E. 455; Stark v. Wellman, 31 Pac. 259; Thelin v. Stewart, 34 Pac. 861; Gardner v. Ogden, 22 N. Y. 326. The causes authorized to be joined must also “affect all the parties to the action.” Rev. Laws, 5039; State v. Kruttschnitt, 4 Nev. 179, 214. In most states, but not in Nevada, causes of action when they arise out of the same transaction, or are connected with the same subject of action, may be united. 14 St. Enc. Proc. 671; 1 C. J. 1081; Jasper v. Hazen, 51 N. W. 583; Wiles v. Suydam, 64 N. Y. 173; Bran v. Christopher, 151 Pac. 172; Hannahs v. Hammond, 19 N. Y. Supp. 883.
It is only actions for causes which are authorized to be united in one complaint that the court has power to order consolidated. Rev. Laws, 4578; 5 St. Enc. Proc.: 255, 272.
“A demurrer to a complaint for an improper uniting of causes of action goes to the complaint as a whole, and the only course of plaintiff thereon is to file an amended complaint, leaving out the objectionable causes of action.” State v. Williams, 77 Pac. 965, 972; Alexander v. Thacker, 46 N. W. 825. If plaintiff declines to amend by electing which action he will prosecute, it is proper to enter a judgment for the defendant to the effect that plaintiff take nothing by the action. Johnson v. Seattle Elec. Co., 81 Pac. 705.
An order overruling a demurrer is “deemed to have been excepted to.” Rev. Laws, 5318. The act of 1915, page 164, in reference to bills of exceptions, has no application to an order which is deemed excepted to, where the order constitutes a part of the judgment roll. An order constituting a part of the judgment roll and deemed excepted to by the statute will be reviewed upon appeal without a bill of exceptions. Davis v. Honey Lake W. Co., 33 Pac. 270; Hawley v. Kocher, 55 Pac. 696; Alpers v. Bliss, 79 Pac. 171.
“In prohibition proceedings, the primary question is whether it is a case where there is no plain, speedy, and adequate remedy in the ordinary course of law.” State v. District Court, 38 Nev. 323. But the concurrent remedy is not regarded as adequate so as to prevent the issuing of the writ if it does not afford the particular right to the party aggrieved, or if its slowness is likely to produce immediate injury or mischief. 32 Cyc. 617; Bell v. District Court, 28 Nev. 280; State v. District Court, 146 Pac. 743. “The statute does not say that the writ will not issue in any case where there is an appeal. There must not only be a right of appeal, but the appeal must furnish some adequate remedy, in order to prevent the issuance of the writ.” Havemeyer v. Superior Court, 24 Pac. 121; Reclamation District v. Superior Court, 154 Pac. 845; Ex Parte Montgomery L. & T. Co., 65 So. 403; White v. Superior Court, 58 Pac. 450.
“The writ should issue for the furtherance of justice and security, and for regularity in judicial proceedings, in cases where none of the ordinary remedies provided by law are applicable.” Walcott v. Wells, 21 Nev. 51. “Thé writ should freely issue whenever it is necessary for the protection of the rights of a litigant, and he has no plain, speedy and adequate remedy.” Silver Peak v. District Court, 33 Nev. 124.
A writ of prohibition may properly issue where a court, although having conceded jurisdiction of the parties and the subject-matter of a cause, is proceeding therein to do something in excess of its jurisdiction. Rev. Laws, 5703. “If the inferior tribunal is assuming to act where it has no jurisdiction of the subject-matter of the proceeding, or if it has jurisdiction thereof, but is exceeding its legitimate powers in the particular matter, the writ will lie.” 32 Cyc. 605; Bruner v. Superior Court, 28 Pac. 341, 345; High, Extr. Legal Rem., 3d ed., sec. 781; State v. Fort, 109 S. W. 737; State v. McQuillan, 165 S. W. 713; Carter v. Bolster, 98 S. W. 105. “A court that proceeds in the trial of a cause against the express prohibition of a statute is exceeding its jurisdiction and may be prevented by prohibition from this court.” Hayne v. Justice Court, 23 Pac. 125.
“Prohibition is as properly granted where the inferior court acts upon a false view of the law fixing its jurisdiction or a misconstruction of a statute conferring jurisdiction, as where it arbitrarily usurps jurisdiction in total disregard of law.” Baldwin v. Cooley, 1 S. C. 256; Thomas v. Mead, 36 Mo. 232; State v. Superior Court, 36 Pac. 443; State v. Clendenning, 112 N. E. 1029; State v. Kimmel, 183 S. W. 651.
The rule that consent cannot give jurisdiction is subject to the qualification that the parties may waive rights and privileges and authorize the court to do what it could not do without their consent. 11 Cyc. 675; Treadway v. Wilder, 12 Nev. 108; McComb v. District Court, 36 Nev. 417.
It is not claimed that legal and equitable cause of action may not be united in one action, if they belong to any one of the classes which the legislature has said may be united, and affect all parties to the suit. The statute which classified the causes of action which may be united prohibits the joining of those not authorized by it. State v. Yellow Jacket S. M. Co., 14 Nev. 237. Where it appears by uncontested facts that causes of action are improperly united, the court has no discretion in the matter, and the lack of discretion is the main test whether its action in trying the cause upon this complaint is in excess of its jurisdiction. Bruner v. Superior Court, 28 Pac. 341.
“It woiild be going a great way for this court to say defendant is not injured by being sued in a mode not only not authorized, but, if he object, expressly forbidden by the statute.” Stark v. Wellman, 31 Pac. 260.
The distinction between actions growing out of a contract and those arising from tort, this court has said, is as necessary to be maintained under our system of pleading as it was at common law. Knickerbocker & N. S. M. Co. v. Hall, 3 Nev. 196.
Norcross & Thatcher, for Respondent:
The complaint states but one cause of action, although several different kinds of relief are asked for. Alexander v. Winters, 24 Nev. 143. The other causes of action are equitable in character, and admittedly could be joined together in one action, and they can be joined with the first cause of action. The character of the relief demanded is not a test for the determination of the proper joinder of actions.
There is but one cause of action. “A declaration, complaint or petition by which name the pleading may be designated under the prevailing practice, which seeks to enforce the remedial right arising from the infringement of the single primary right by a single wrong constitutes but one cause of action. * * * ” 23 Cyc. 380. “It is not necessary that the wrong shall consist of a single act, or that the resulting injuries consist of but a single element; and the amount sought to be recovered may be made up of several items. Under these principles but a single cause of action is stated in the petition seeking the enforcement of a single contract.” 23 Cyc. 381.
A joinder takes place on contract when separate and independent contracts are set forth separately as causes of action, and there is no joinder when all that is sought is separate relief for each separate breach of one contract. 23 Cyc. 283, 284, 383, 385.
The writ of prohibition is to be issued only in cases of extreme necessity, and where wrong, damage, and injustice are likely to follow the action of the inferior tribunal. Lonkey v. Wells, 16 Nev. 271; Gardner v. Gardner, 23 Nev. 207; Low v. Crown Point M. Co., 2 Nev. 75; Walcott v. Wells, 21 Nev. 51; Turner v. Lan-gan, 29 Nev. 281; State v. District Court, 28 Nev. 323.
By the Court,
Sanders, J.:
The petitioners ask for writ of prohibition to restrain the Second judicial court of the State of Nevada, in and for the county of Washoe, from proceeding to try a civil action pending therein against the petitioners, upon the ground that the said court, unless restrained, will transcend the limits of its jurisdiction. Upon the filing of the petition an order to show cause was issued, and the return thereon consists of a general demurrer and answer; both raising the question whether the facts alleged show any excess of jurisdiction for which the petitioners have no other adequate remedy. Rev. Laws, 5708, 5709. It appears that the petitioners interposed a j oint and separate demurrer to the complaint, which was overruled, and, instead of answering, as required by the court's order, they have applied for this writ.
Though other questions are ably discussed, the only one to be considered in this proceeding is the propriety of our granting the writ, in view of the- long line of decisions holding that the writ ought not to issue where there is another and adequate remedy. Unless the case as made by the petition is to be distinguished from those cases, we should hesitate to entertain this application. That portion of the demurrer material here, and to which this inquiry is directed, is that there is a mis-joinder of causes of action in the complaint, in that it attempts to set forth:
"(a) A cause of action on an express contract; (b) a claim against specific personal property; (c) a claim against a trust by virtue of a contract, or by operation of law — which said causes of action, so stated, belong to more than one of the classes which may be joined in the same action and do not affect all the parties to the action."
The demurrer involves a discussion of section 97 of our practice act (Rev. Laws, 5039) which permits causes of action to be united when they all belong to one only of the seven subdivisions enumerated in the section and affect all the parties to the action. The only source of authority for any pleading, and the rules for the construction thereof, are drawn from our practice act. It provides that all the forms of pleading in civil actions and the rules by which the pleadings shall be determined shall be those prescribed by the act. Rev. Laws, 5036. It also provides that in the construction of a pleading, for the purpose of determining its effect, its allegations shall be construed with a view to substantial justice between the parties. Rev. Laws, 5065. We are mindful that our constitution and statute have broken down the barrier of the common law, in so far as the form of a civil action is concerned. Rev. Laws, 329, 4943. Nevertheless, parties must find their authority for the form of their pleading in the practice act. Rev. Laws, 5036. It is the general rule that a complaint shall contain but a single cause of action (14 Standard Ency. Proc. 668), and two or more causes of action cannot be united in the same complaint, unless the joinder is authorized by the practice act (State v. Yellow Jacket S. M. Co., 14 Nev. 220; Dyer v. Barstow, 50 Cal. 652).
Section 97 of the practice act provides:
"The plaintiff may unite several causes of action in the same complaint, when they all arise out of:
"1. Contract, express or implied; or
"3. Claims to recover specific personal property, with or without damages for the withholding thereof; or
"4. Claims against a trustee, by virtue of a contract, or by operation of law;
"But the causes of action so united shall all belong to only one of these classes and shall affect all the parties to the action, and not require different places of trial, and shall be separately stated. "
The object of this section is said to be to avoid a multiplicity of actions, and is entitled to a liberal construction, with a view to effect its object. State Bank v. Lanam, 34 Okl. 485, 126 Pac. 220; Cincinnati, etc., R. Co. v. Cooke, 37 Ohio St. 265. But a legitimate construction will not permit of causes of action being united contrary to the limitations or restrictions contained in the act. ' The general purposes of its limitations is to secure and maintain a regular and orderly administration of justice. Their particular purpose is to avoid a multiplicity of distinct grievances, diverse and incongruous matters, whereby a defendant would be subjected to the embarrassment and difficulty of meeting on the trial widely different issues. Horton v. Equitable Life A. Society, 35 Misc. Rep. 495, 71 N. Y. Supp. 1060. But a party who seeks to take advantage of its limitations is not entitled to such technical construction of the pleading as would defeat the general object of the privilege afforded the complainant.
If the pleading in this case were attacked on one of the general grounds of demurrer, such as that it fails to state facts sufficient to constitute a cause of action, there would be much force to this contention. State v. District Court, 88 Nev. 323, 149 Pac. 178. Properly speaking, the office of the writ of prohibition is not to correct errors, but to prevent courts from transcending the limitation of their jurisdiction in the exercise of judicial power. Low v. Crown Point M. Co., 2 Nev. 75. The limitations are negative in character, and expressive of the legislative intent that a party who seeks to avail himself of the privilege to unite his causes of action must square his pleading with the rules prescribed by the practice act. State v. Yellow Jacket S. M. Co., supra. Where an existing right or privilege is subject to regulation by a statute in negative words, the mode so prescribed is imperative (2 Lewis's Sutherland, Stats. Constr. 633) ; and where a statute has imposed restrictions under which a court, or judge thereof, may act in matters otherwise within its jurisdiction, and those restrictions are disregarded, the party aggrieved may have a remedy by prohibition (People ex rel. v. Nichols, 79 N. Y. 591; Quimbo Appo v. People, 20 N. Y. 531).
We do not apprehend that the rule stated extends to the correction of errors for a mere irregularity in the exercise of an authority inherent in a court; but, where an authority otherwise inherent is limited by.statute, the court which acts differently from the prescription' of the act exceeds its jurisdiction, and is therefore liable to prohibition. McDonald v. Elfe, 1 Nott & McC. (S. C.) 504. Unquestionably a court that proceeds in the trial of a cause against the express prohibition of a statute exceeds its jurisdiction. Hayne v. Justice Court, 82 Cal. 284, 23 Pac. 125, 16 Am. St. Rep. 114.
Entertaining the views the question remains: Has the respondent exceeded the limits of its jurisdiction in proceeding with the trial of this cause contrary to the prohibitions contained in section 97 of our practice act? A demurrer to a complaint for misjoinder of causes of action involves the concession that it states two or more good causes of action. Pomeroy's Code Rem., sec. 342. We shall therefore consider the grounds of the demurrer upon this assumption, without expressing any opinion as to the legal sufficiency of either of the causes of action or upon the merits of this lawsuit.
The complaint is too lengthy to allow of a minute synopsis of its allegations. It contains five causes of action, separately stated, against both of the defendants, and we are of the opinion that it states a cause of action aimed against one of the defendants, though not separately stated. We have examined with care the able analysis of the facts stated in the complaint made by counsel for the petitioners, without being able to reach the conclusion contended for by them that the causes of action separately stated against both of the defendants belong to more than one only of the classes enumerated in section 97. Therefore we conclude that the demurrer to the petition on this particular ground should be sustained. In view of that lack of certainty and definiteness which should characterize a pleading that seeks redress for numerous wrongs of a different nature and various remedies adopted to meet the circumstances of the case, we have reached this conclusion with some misgivings as to its correctness; and as the point discussed is likely to have some material bearing on further proceedings in the cause, we shall state briefly our views of the pleading.
The first cause of action is confessedly to recover from the defendants $30,000 as damages for the breach of a contract of employment. The second and third causes of action are to establish the plaintiffs' alleged right to a specific portion of a number of shares of valuable mining stock in different companies, alleged to have been acquired and held by the defendants in virtue of their contractual relationship with the plaintiffs, and in the event that the stock cannot be delivered that plaintiffs be given j udgment for its value, aggregating the sum of $209,233. The fourth cause of action is not discussed. The fifth cause of action seeks a discovery and an accounting from the defendants of all, their dealings with certain property of the plaintiffs intrusted to them under an executory contract. Fraud is charged in the creation of the contractual relation between the plaintiffs and the defendant Margrave. This feature of the pleading will be dealt with in the discussion of that portion of the demurrer which states that the causes of action do not affect all the parties. Fraud and deceit are also charged in the management and disposition of the property embraced in the contract.
The defendants, in so far as they are jointly liable, are proceeded against as agents, and not as trustees. The second and following causes of action disclose such wilful violation of the' fiduciary relationship between the parties imposed by the contract that it would be unconscionable for the defendants to withhold from plaintiffs their alleged portion of all of the property in any manner acquired in virtue of their contractual relations. Contract, then, being the foundation of the duties imposed upon the defendants, it is clear that the breach of those duties must be regarded as arising out of contract and therefore as within subdivision 1 of section 97, which embraces all causes of action arising out of contract, either express or implied. But it does not follow that the complaint contains but one cause of action. We are impressed that it .clearly 'discloses, and that it was the intention of the pleader to state, independent and distinct causes of action. Should the defendants be brought to trial on the pleading as it now stands they, would be entitled to all the advantages incident to a pleading that contains two or more causes of action properly joined.
Another more difficult question remains to be considered. An objection is stated in the demurrer that the causes of action do not affect both of the defendants. This branch of the demurrer is both difficult and perplexing, because of the appetite of the pleader. A technical construction of the pleading involves a multitude of subjects, parties, contract, tort, fraud, deceit, damages, agencies, nondisclosure, trust in invitum, voluntary trust, discovery, accounting, receivers, and injunction. When, however, the pleading is denuded of its narrative averments, it affirmatively appears that on December 21, 1912, the defendant Walser was employed by plaintiffs in his professional capacity as an attorney at law, and in the contract of employment he was constituted the plaintiffs' attorney in fact to reduce to possession, by litigation or otherwise, all of plaintiffs' rights and interests, vested or contingent, in certain mining companies and properties named in the contract, without cost or expense to plaintiffs. As compensation for his services, the plaintiffs by the contract of employment sold and conveyed to the said defendant, his heirs or assigns, an undivided two-thirds interest in all of the property embraced in the contract and it was expressly stipulated therein that the plaintiffs were to receive one-third of everything recovered under the contract.
At or about the time the contract was executed, it is charged that the defendant Walser falsely and fraudulently represented to plaintiffs that it would require large sums of money to accomplish the purposes of the agreement, and falsely and fraudulently represented that it would be necessary to have associated with him one of sufficient means to do the things required of him to be done under the contract, and that he falsely and fraudulently represented that his codefendant Mar-grave was such person. It is charged that the defendant Margrave knew of the false and fraudulent representations made by his codefendant as to his financial ability, and acquiesced therein. It appears that the defendant Walser represented at this time that it was necessary that plaintiffs sell, assign, and transfer to Walser a two-thirds interest in the property, because of and in consideration of the money to be advanced by Margrave, for which consideration he (Walser) would have to convey to Margrave a one-third interest in the contract; that thereafter the defendant Walser, by a purported assignment in writing, attempted to convey to Margrave an undivided one-third interest of all the rights of the plaintiffs in all the property named in the contract with Walser.
It is charged, as a conclusion, that by reason of the false and fraudulent representations of the defendants, and that by reason of the fact that the defendant Mar-grave at the time of the representations was without any money whatever, the sale to Walser of more than a one-third interest in plaintiffs' property named in the contract was without any consideration whatever. It appears that the defendant Margrave acted with his codefendant Walser under the contract as owner of a one-third interest in the property of plaintiffs, and in the course of their joint dealings under the contract there came under the control of the defendants 291,000 shares of stock in one of the companies named in the contract. It is the prayer of the complainants that they be given judgment for the sum of $30,000, as damages against the defendants for their failure and neglect of duty in not protecting from loss property intrusted to them in virtue of the contract of December 21, 1912. We do not apprehend that it is the contention of plaintiffs that a joint and several judgment could be had against the defendants under the pleading in its present form. The defendants are jointly liable, or not at all, for the breach of duty complained of. If, then, on the face of the complaint, it should appear that the defendants are not jointly liable for the loss of the stock as alleged, and no several judgment could be had against them, no legal reason is suggested why they, or either of them, should be subjected to the cost and inconvenience of a trial on the first cause of action. If the facts as above outlined be true, they clearly negative any duty or promise on the part of the defendant Margrave to protect the plaintiffs' property from loss.
It is charged that that particular portion of the contract whereby Margrave acquired an interest in its subject-matter was fraudulent in its inception, and that by reason of the fraud perpetrated by his codefendant Walser, and acquiesced in by him, he became the owner of a one-third interest in the contract, that all of his acts in conjunction with his codefendant's were tortious, and that the alleged attempted assignment to him of a one-third interest in the property embraced in the contract was without consideration; and the plaintiffs demand judgment that they be decreed owners of one-half of the two-thirds interest originally sold and conveyed to Walser under the contract. The effect of the relief demanded is to repudiate and disavow Margrave's interest in any of the property alleged to have been-acquired by the defendants under the contract. The effect of these allegations is equivalent to an admission that Margrave owed no duty to plaintiffs to protect their property from loss. The relation between the plaintiffs and the defendant Walser was of a fiduciary character; that of the defendant Margrave was tor-tious; yet it is sought to mulct him in damages for the breach of a fiduciary duty, when it clearly appears that none is shown, but, on the contrary, is expressly disaffirmed.
It is just such a situation as this that section 97 of the practice act is designed to meet. Why should the defendant Margrave be subject to the cost, inconvenience and necessity of resisting an action against him which could result only in a voidable judgment? Under the liberal rule of construction enjoined for the purpose of determining the effect of a pleading (Rev. Laws, 5065), we uphold the causes of action separately stated in the complaint upon the ground that they were founded upon a contract equally binding under the circumstances upon both of the parties defendant. But this conclusion does not deprive the defendant Margrave of the benefit of his demurrer upon the ground that the causes of action do not affect both of the defendants.
It is obvious that by the fifth cause of action the plaintiffs seek an accounting from the defendants upon the ground of their fiduciary relation arising from their original contractual relation. That an agent, or one standing in such relation, can be brought to account with his principal for moneys and property received cannot be doubted; but in order to uphold said action it must appear that the transaction arose out of such relation. If, therefore, no such contractual relation existed between the plaintiffs and the defendant Mar-grave as created a confidential or trust relation, but, on the contrary, one tortious in its nature, there should be judgment for the defendants on the demurrer.
But it is strenuously urged that as one of the causes of action is at law and the others are equitable in their nature, and a court of equity having acquired jurisdiction over the parties and the subject-matter, and as the relief obviously extends to property in the hands of both defendants, equity will settle and adjust in a single action all the rights and interests incapable of being-tried and disposed of by a .single judgment at law. We are not called upon to determine whether the causes of action separately stated and the one intermingled therewith are properly j oinable under the old equity practice. The petitioners are here litigating a rule of pleading— one that negatives and limits the general power or authority of the -respondent court in a proceeding under it. In the case of State v. Yellow Jacket S. M. Co., supra, the question was asked:
"Is our code 'the only source of authority from which rules of pleading may be drawn, and have its methods so completely supplanted those which preceded it that the latter can no longer be appealed to as possessing of themselves any force and authority?' "
The court answered this question by holding that a complaint, answer, or demurrer is sufficient when it squares with the rules prescribed by the practice act, and not otherwise. But regardless of the statute, we have been referred to no rule of practice, at law or in equity, which justifies the course of the plaintiffs in this action. It is true that section 97 does not provide that causes of action, to be united, must be consistent; but it is obvious that the complainants state a cause of action for the breach of a contract and a distinct and independent cause of action for fraud in its procurement. This fraud is blended and intermingled with the whole structure of the complaint, and each of its causes of action, so much so that by reason thereof the plaintiffs were induced to demand its rescission in part as to both of the defendants and in its entirety as to one of the defendants, and that two-thirds of the property acquired under it be decreed to be that of the plaintiffs, and in case the contract be not rescinded, that the defendants be held jointly liable, both at law and in equity, for its breach.
We are aware that a court of equity is ever the master of frauds and that its doors stand open to relief against it; but it would be unjust for the plaintiffs to try the experiment in this action of rescinding the contract for fraud in its procurement, and, failing in this, to recover damages at law for its breach and relief in equity for the violation of a fiduciary obligation implied from the contractual relationship of the parties created by the contract. One of these positions negatives the other. Though the plaintiff is not confined to one kind of relief, yet each prayed for, though differing in character, should be consistent. The principle that forbids the union of inconsistent causes of action should prevent a demand for inconsistent relief in any one cause. Bliss on Code Pleadings, sec. 164.
We are of the opinion that the rule of pleading prescribed by section 97, designed as it is for the regular and orderly administration of justice, is not to be departed from; and as the writ of prohibition is designed "to prevent the violation of some fundamental principle of justice or the transgression of the bounds prescribed by law," should the respondent undertake to try this cause on the pleading in its present form, it would proceed against the spirit and the letter of the statute, and the writ as applied for should be granted.
It is so ordered.