State ex Rel. Duggan v. Kirkwood

Full title: STATE OF MISSOURI, EX REL. JEROME F. DUGGAN, Trustee in Reorganization of…

Court: Supreme Court of Missouri, Court en Banc

Date published: Feb 9, 1948

357 Mo. 325 (Mo. 1948)

208 S.W.2d 257

Opinion

No. 40260.

January 12, 1948. Rehearing Denied, February 9, 1948.

1. MASTER AND SERVANT: Trusts: Fiduciary Obligations of Employee: Engaging in Competing Business. If an employee uses his knowledge gained in the course of his employment to engage in a competing business, he will be held in equity as a trustee for his employer as to any profits realized.

2. PARTIES: Mandamus: Absolute Right of Intervention: Remedy by Mandamus. Under Sec. 21(a) Civil Code there is an absolute right to intervene when representation of the applicant's interest is or may be inadequate and the applicant is or may be bound by a judgment in the action. The trial court has no discretion in the matter, and if the right to intervene is denied, mandamus is the proper remedy.

3. PARTIES: Right of Intervention: Inadequate Representation: Effect of Judgment. Relator had the right to intervene since he was inadequately represented by the parties to the action and might be bound by the judgment.

4. PARTIES: Right of Intervention: Fund in Court. Relator had the right to intervene for the additional reason that he would be adversely affected by the distribution of a fund in the custody of the trial court.

5. PARTIES: Application for Intervention Timely. There was no showing that the position of the parties to the original suit was changed to their detriment by filing the application for intervention, so intervention cannot be denied upon the ground that the application was not timely.

6. PARTIES: Equity: Constitutional Law: Application for Intervention: No Right of Trial by Jury. No constitutional right of trial by jury could be impaired by permitting relator to intervene, as the constitutional provision does not give a trial by jury in an equity action.

7. MANDAMUS: Supreme Court Jurisdiction: $7500 Amount Not Required. The Supreme Court has jurisdiction in a mandamus proceeding even though the amount involved may not be in excess of $7500.

PEREMPTORY WRIT ISSUED.

James T. Blair, Jr., Geo. O. Durham and B. Sherman Landau for relator.

(1) Jurisdiction of this court. Const. Art. V, Secs. 3, 4. (2) Mandamus is a proper remedy. State ex rel. Bank of Nashua v. Holt, 156 S.W.2d 708, 348 Mo. 982; Perkins v. Burks, 78 S.W.2d 845, 336 Mo. 248; State ex rel. General Motors Acceptance Corp. v. Brown, 48 S.W.2d 857, 330 Mo. 220; State ex rel. Fielder v. Kirkwood, 138 S.W.2d 1009, 345 Mo. 1089; State ex rel. Lefholz v. McCracken, 231 Mo. App. 870, 95 S.W.2d 1239, 231 Mo. App. 870. (3) Intervention generally. The intervention was of right. Code of Civ. Proc., Sec. 21 (a) (3). (4) The fund being in custodia legis could be claimed only by application to the court having its custody. In re Franz Est, 145 S.W.2d 400, 346 Mo. 1149. (5) Being unable to resort to any other court for the relief sought, the respondent, by denying relator admission to the pending action, denied him access to the courts and denied him certain remedy for the injury which he sought to assert, contrary to the guaranties of the Constitution. Mo. Const. Art. I, Sec. 14. (6) And denied him due process of law and equal protection of the law contrary to the Constitutions, State and Federal. Mo. Const. Art. I, Sec. 10; U.S. Const. Amend. 14, Sec. 1. (7) Respondent erred in undertaking to determine matters of substance in limine. 21 C.J., sec. 344, p. 344, sec. 347, p. 346; Douglass v. Blake, 189 Ala. 24, 66 So. 617; Miller v. Clark, 301 Ill. 273, 133 N.E. 685; 30 C.J.S., sec. 162, p. 606. (8) A court may not even where intervention is discretionary judge the substance of an intervenor's demand in limine, but should admit the intervention in order that the intervenor might by appeal review the action of the lower court. Toller v. E.T.V. G. Railway Co., 67 F. 168; Brinckerhoff v. Holland Trust Co., 146 F. 203; Leary v. United States, 224 U.S. 567, 56 L.Ed. 889. By analogy: Perkins v. Burks, 78 S.W.2d 845, 336 Mo. 248; State ex rel. Bank of Nashua v. Holt, 348 Mo. 982, 156 S.W.2d 708. (9) The relator as reorganization trustee for Christopher was vested with title to the claim asserted. Chandler Act Sec. 111, 11 U.S.C.A. 511; Chandler Act, Sec. 70a (5), 11 U.S.C.A. 110 (5); Duggan, Trustee Christopher Engineering Co. and Natl. Aircraft Co. v. Sansberry, 327 U.S. 499, 90 L.Ed. 622. (10) Under the admitted facts the relator had an option to claim the profits and with respect to the profits Magidson stood in the position of a trustee ex maleficio. Equity will find a way to strip a wrongdoer of the profits of his wrong. Williams v. McKinley, 65 F. 4. (11) The obligation of Magidson has its foundation not in the actual commission of fraud, but in the orison "lead us not into temptation." Wormley v. Wormley, 8 Wheat. 421, 5 L.Ed. 651. (12) Magidson's covenant was valid even for the period of two years subsequent to the term of the contract. 43 C.J.S., sec. 84, p. 571; Athletic Tea Co. v. Cole, 16 S.W.2d 735. (13) He was also disabled, at least during the term, from competing as an equitable incident of his employment and regardless of his covenant. 3 C.J.S., p. 19, Verbo Agency. (14) The same rule of loyalty applies as between an employer and employee that applied to the relation of principal and agent, trustee and cestui que trust and client and attorney. Morgan v. Aldrich, 91 S.W. 1024, 114 Mo. App. 700; Jewell Realty Co. v. Dierks, 18 S.W.2d 1043, 322 Mo. 1064. (15) The principal is subrogated to the fruits of the agent's disloyalty. Exeter v. Sawyer, 146 Mo. 302, 47 S.W. 951; Murdock v. Milner, 84 Mo. 96; Arpe v. Brown, 51 S.W.2d 225, 227 Mo. App. 60; Garner v. Woods, 24 S.W.2d 708; Holt v. Dieckmann R.E. Co., 140 S.W.2d 59; In re Luther, 63 F. Supp. 83; Mountain Grove Creamery Co., etc., v. Willow Springs Creamery Co., 202 S.W. 1054. (16) An agent will not be allowed to retain profits incidentally obtained by him in the execution of his duty (not authorized by the principal), any usage to the contrary notwithstanding, and all profits over and above the agent's ordinary compensation belong to the principal. Jacques v. Egdell, 40 Mo. 76. (17) If an agent, employee or other fiduciary violates his obligation of loyalty and profit, or property, results to him therefrom, the same is charged with a trust for the benefit of the other party at the option of the latter in accordance with sagacious public policy, which for the purpose of removing all temptation removes all possibility that a fiduciary may derive profit from the subject matter of the trust, so that one whose confidence has been betrayed may enforce the trust which arises under this rule of law, although he has sustained no damage and although the confidential relation has terminated before the trust was betrayed. The relation of trustee and cestui que trust, principal and agent, client and attorney, employer and employee, are within the prohibition of this rule of law. Trice v. Comstock, 121 F. 620; Morgan v. Aldrich, 91 S.W. 1024, 114 Mo. App. 700; Harrison v. Craven, 87 S.W. 962, 188 Mo. 590; Witte v. Storm, 139 S.W. 384, 236 Mo. 47. (18) The rule springs from the duty of the employee to protect the interests of his correlate and not to permit his personal interest to conflict with his duty in that respect and thereby provide against possible selfish interest exercising an influence which can interfere with the faithful discharge of the duty owing. Michoud v. Girod, 11 L.Ed. 1076; Magruder v. Drury, 235 U.S. 106, 59 L.Ed. 151. (19) A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctillio of an honor the most sensitive, is then the standard of behavior. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the disintegrating erosion of particular exceptions. Meinhard v. Salmon, 164 N.E. 345. (20) The court erred in concluding that the relator had a complete and adequate remedy at law. The relator had alternate remedies. He could sue Magidson at law for his actual damages or at his option claim the proceeds of Magidson's wrong by the equitable title vested in him by the rules of equity. His right to intervene and claim the fund in subrogation of Magidson was not destroyed by the fact that he had an election of remedies between recovery of damages for the misconduct and the recovery of the fund. Trust Co. v. Chicago T.T.R. Co., 188 F. 292. (21) The court erred in concluding that Magidson was illegally deprived of a jury trial because an equitable proceeding was brought against him. The constitutional guarantee of trial by jury protects that right only insofar as it existed at common law. At common law the parties to an equitable action had no right to a jury trial. Spitcaufsky v. Hatten, 182 S.W.2d 86, 353 Mo. 94.

Walter N. Davis, Max Sigoloff and Myron L. Silver for respondent.

(1) The amount involved in the relator's petition to intervene was not, independent of all contingencies, in excess of $7,500, and therefore relator does not have the right to invoke the jurisdiction of this court for a writ of mandamus directed to respondent. Art. V, Sec. 3, Mo. Constitution 1945; Warmack v. Crawford, 192 S.W.2d 407; Higgins v. Smith, 351 Mo. 609, 144 S.W.2d 149. (2) Respondent's finding that relator was not entitled to intervene cannot be reviewed by mandamus. Mandamus is never granted unless it can be specifically shown that there is no other legal remedy, and the relator has failed to meet this test. Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845; State v. Pythian Sisters, 227 Mo. App. 557, 54 S.W.2d 468; State ex rel. v. Thompson, 330 Mo. 1146, 52 S.W.2d 472; State ex rel. v. Hughes, 123 S.W.2d 105; State ex rel. v. Sevier, 334 Mo. 771, 68 S.W.2d 50; State v. Governor, 39 Mo. 388. (3) Mandamus is never granted when a party can be redressed by appeal. State v. Thurman, 232 Mo. 130, 132 S.W. 1157; State ex rel. v. Hughes, 123 S.W.2d 105; State v. Judge, 1 Mo. App. 543. (4) Even if relator has no other remedy at all, respondent's determination that relator could not intervene was a judicial determination which, whether right or wrong, cannot be reviewed by mandamus. State v. Dickey, 280 Mo. 536, 219 S.W. 363; State ex rel. v. Sevier, 334 Mo. 771, 68 S.W.2d 50; State v. Thurman, 132 S.W. 1157; State ex rel. v. Hughes, 123 S.W.2d 105; State ex rel. v. Nortoni, 269 Mo. 563, 191 S.W. 429; State v. Mosman, 112 Mo. App. 540, 87 S.W. 75; State v. Robinson, 257 Mo. 584, 165 S.W. 997. (5) Respondent denies that he failed to exercise jurisdiction of relator's petition. The petition of relator was filed and placed on the court's docket. It was argued before respondent and counsel stipulated in open court that said application should be taken as submitted upon briefs to be filed by counsel. Thereafter briefs of counsel were furnished respondent, and thereafter after due consideration of the law and being fully advised in the premises, respondent decided that relator was not entitled to intervene and accordingly entered a written finding and decision. There was never any contention that respondent failed to exercise jurisdiction of relator's petition. State v. Mosman, 112 Mo. App. 510, 87 S.W. 75; State ex rel. v. Sevier, 334 Mo. 771, 68 S.W.2d 50; State ex rel. v. Hughes, 123 S.W.2d 105. (6) If relator had been allowed to intervene, defendant Magidson would have been denied his constitutional right to a trial by jury of the alleged cause of action at law asserted by relator. And this court will not permit mandamus to be an instrument through which anyone can be denied this constitutional right. State ex rel. v. Terte, 351 Mo. 1089, 176 S.W.2d 25. (7) In any event, the discretionary acts of inferior tribunals are never reviewed by this court unless the inferior court has palpably, prejudicially, clearly and unmistakably abused its discretion. Bader v. Beck, 173 S.W.2d 647; Commonwealth Finance Corp. v. Mo. Motor Bus Co., 251 S.W. 756; Sartin v. Springfield Hospital Assn., 195 S.W. 1038; White v. Boyne, 224 Mo. App. 597, 30 S.W.2d 791. (8) There is no right of intervention unless the same is expressly granted by statute Monticello Bldg. Corp. v. Monticello Inv. Co., 330 Mo. 1128, 52 S.W.2d 545; United States v. Columbia Gas Elec. Corp., 27 F. Supp. 116, Appeal dismissed, 108 F.2d 614, certiorari denied 309 U.S. 687. (9) Sec. 847.21, the only Missouri statute relating to intervention, does not give relator the right to intervene herein. (10) There is no basis for relator's intervention under Subsec. (a) (1) of Sec. 847.21, Mo. R.S.A., for no statute confers an unconditional right to intervene. (11) There is no basis for intervention under Subsec. (a) (2) of Sec. 847.21, Mo. R.S.A., as the relator had no interest in the controversy between Seco-Lite and defendant, and would not have been bound by a judgment therein. (12) The first portion of Subsec. (a) (2) of Sec. 847.21 confers the right to intervene "when the representation of the applicant's interest by existing parties is or may be adequate." This assumes two concurrent conditions, namely, that applicant has an interest in the controversy, and, second, that it is inadequately represented. United States v. Columbia Gas Elec. Corp., 27 F. Supp. 116, Appeal dismissed, 108 F.2d 614, certiorari denied, 309 U.S. 687; Tolliver v. Cudahy Packing Co., 39 F. Supp. 337. (13) The interest which a petitioner to intervene must have to satisfy this requisite must be a legal or equitable interest in the subject matter and object of the action, which is entirely lacking in this case. Miller v. Boulware, 267 Mo. 487, 184 330 S.W. 1148; McNellis v. Kansas City, 143 S.W.2d 477; Bender Body Co., 47 F. Supp. 233. (14) Intervention should not have the effect of injecting a new and independent controversy into a pending action. Relator's alleged unliquidated claim is in no respect connected with the subject of the action between Seco-Lite and Magidson. Hoffman v. Bingham, 324 Mo. 516, 24 S.W.2d 125; Monticello Bldg. Corp. v. Monticello Inv. Co., 330 Mo. 1128, 52 S.W.2d 545; Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903; Mountain Grove Creamery v. Willow Springs, 202 S.W. 1054; United States v. Columbia Gas Elec. Corp., 27 F. Supp. 116, Appeal dismissed 108 F.2d 614, certiorari denied, 309 U.S. 687; Chandler Price Co. v. Brandtjen, 296 U.S. 52, 80 L.Ed. 39; Leaver v. K. L. Co., 6 F.2d 666. (15) A party is not entitled to intervene even though his claim for breach of contract is directly connected with the subject of the action in a pending suit. Glass v. Woodman, 223 F. 621; Babcock v. Town of Erlanger, 42 F. Supp. 293. (16) The second portion of said Subsec. (a) (2) permits intervention when "the applicant is or may be bound by a judgment in the action. Having absolutely no interest in either the subject matter or the object of the main action, and not being a party thereto, relator would not have been bound by a judgment in the main action between Seco-Lite and defendant. White v. Hanson, 126 F. 559. (17) Under said Subsec. (a) (3) no right to intervene exists unless the person seeking to intervene can manifestly show that he has a legal or equitable interest in property in the custody of the court. Babcock v. Town of Erlanger, 42 F. Supp. 293; United States v. Columbia Gas Elec. Corp., 27 F. Supp. 116; Appeal dismissed, 108 F.2d 614, certiorari denied, 309 U.S. 687; Radford Iron Co. v. Appalachian Power Co., 62 F.2d 940, certiorari denied, 289 U.S. 748, 77 L.Ed. 1494; Jewel Ridge Coal Corp. v. United Mine Workers, 3 F.R.D. 251. (18) The legal or equitable interest must be at least equal to that which petitioner would have if he had a lien upon the property in the custody of the court. Barnes v. Alexander, 232 U.S. 117, 58 L.Ed. 530. (19) Relator has neither a legal nor an equitable interest in property in respondent's custody. Relator claims damages for an alleged breach of contract, but his claim is wholly unliquidated, uncertain as to amount, and has not been reduced to judgment. And claimants before obtaining judgments, have no standing to complain of any disposition of property. Curlee Clothing Co. v. Boxer, 51 S.W.2d 894. (20) Relator's general allegation of insolvency, devoid of any facts to support the same, is not sufficient upon which to predicate intervention. Such allegation is a mere conclusion of the relator, and, in any event, is untenable unless supported by specific facts. Ryan v. City of Warrensburg, 342 Mo. 761, 117 S.W.2d 303; Sinclair Refining Co. v. Wyatt, 347 Mo. 862, 149 S.W.2d 353; Pesch v. Boswell, 84 331 S.W.2d 151; Bragg v. Specialty Shoe Machinery Co., 225 Mo. App. 902, 34 S.W.2d 184; Palmer v. Marshall, 24 S.W.2d 929. (21) Even if defendant were insolvent, and this is denied, not even that would warrant intervention by the relator. United States v. Land in Botetourt County, 51 F. Supp. 158. (22) If the relator had been permitted to intervene, not only would new issues have been engrafted upon those already before the court in the main action, but different evidence, different proof, different burdens of proof, and different types of action, would have been commingled. All of this would have had the effect of unduly delaying and prejudicing the adjudication of the rights of the individual parties. Carpenter v. Wabash Railway, 103 F.2d 996, Reversed on other grounds, 309 U.S. 23, 84 L.Ed. 558; In re Water Control and Inf. District, 36 F. Supp. 36. (23) The main action between Seco-Lite and defendant had been pending for seventeen months and had been set for trial before petitioner first sought to intervene therein. Therefore, relator's application to intervene was not timely, as required by Sec. 847.21, Mo. R.S.A. Zeitinger v. Hargadine-McKittrick Co., 298 Mo. 461, 251 S.W. 913; United States v. Columbia Gas Elec. Corp., 27 F. Supp. 116; Appeal dismissed, 108 F.2d 614, certiorari denied, 309 U.S. 687; Jacobs v. Volmey Mills, 47 F. Supp. 493. (24) If relator is allowed to intervene in the equity suit between Seco-Lite and defendant, defendant would be denied his constitutional right to a trial by jury. In actions at law the Constitution and the statutes guarantee a trial by jury. Art. I, Sec. 22, Mo. Constitution, 1945, Secs. 98, 107-110, of the New Code of Civil Procedure for Missouri. (25) Relator's action for a money judgment was one at law. Chilton v. Chilton, 297 S.W. 457; State ex rel. v. Reynolds, 289 Mo. 382, 232 S.W. 683; Citizens Trust Co. v. Going, 228 Mo. 505, 224 S.W. 1019. (26) Relator's action at law is not in the least changed by his general allegations to the effect that he has an "equitable lien" on, or an "equitable assignment" of, or is "equitably subrogated" to the proceeds of the joint venture which are ultimately adjudged to be due defendant. These are mere conclusions of the pleader, and do not change his suit from one at law to one in equity. Citizens Trust Co. v. Going, 228 Mo. 505, 224 S.W. 1019; Wolf v. Hartford Fire Ins. Co., 219 Mo. App. 307, 269 S.W. 701. (27) But even the issues raised by these allegations are triable in a law action and by a jury. Murry v. Central Bank, 226 Mo. App. 400, 40 S.W.2d 721; Hayden v. American Cent. Ins. Co., 221 S.W. 437; New Harmony Lodge v. Kansas City, 100 Mo. App. 407, 74 S.W. 5. (28) The alleged contract upon which relator predicates his claim lacks mutuality, for it is entirely dependent for performance by Christopher, upon Christopher's wish, will or whim. Royal Brewing Co. v. Uncle Sam Oil Co., 205 Mo. App. 616, 226 S.W. 656; Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054; Fullington v. Ozark Poultry Supply Co., 327 Mo. 1167, 39 S.W.2d 780. (29) The alleged contract is void and unenforceable and it is oppressive and the protection given to Christopher is wider than was reasonably required to protect its business. 17 C.J.S. 636; Mallinckrodt Chem. Works v. Nemnich, 83 Mo. App. 6, affirmed 169 Mo. 388, 69 S.W. 355; Atlantic Tea Co. v. Cole, 16 S.W.2d 735. (30) Before anyone can recover for a breach of contract, he must at least allege either performance on his part or that he is ready, willing and able to perform, which of course relator could not prove. St. Louis Union Trust Co. v. Van Raalte, 214 Mo. App. 172, 259 S.W. 1067; Major v. Hast, 263 S.W. 466. (31) Christopher has neither shown performance on its part nor that it is ready and able to perform. Recovery for a breach of contract is always denied where damages are so remote as not to be capable of ascertainment with certainty. Dick v. Puritan Pharmaceutical Co., 46 S.W.2d 941; Fine Arts Pic. Corp. v. Karzin, 29 S.W.2d 170. (32) Although relator alleges that in equity he is entitled to all the profits that Magidson made in his joint venture with plaintiffs, it is evident that relator cannot in any respect fit into any legal definition of subrogation. Black's Law Dictionary, Third Edition, "Subrogation." (33) Equity does not take jurisdiction unless it can be plainly shown by a statement of specific facts that there is no adequate remedy at law. Schloss v. Datillo, 197 Mo. App. 656; Brinkerhoff-Faris Sav. Co. v. Hill, 323 Mo. 180, 19 S.W.2d 746; Palmer v. Marshall, 24 S.W.2d 229.

[258] TIPTON, C.J.

The first submission of this case was set aside by this court because it was not at issue. 204 S.W.2d 307. A motion for judgment on the pleadings was filed by relator and the cause was reargued. It is an original proceeding in mandamus to compel the respondent, a judge of the circuit court of the city of St. Louis, to permit intervention in the case of Max and Hascal Schneider, doing business as Seco-Lite Manufacturing Company, Plaintiffs, v. Phil Magidson, Defendant, No. 87374.

Many issues are made by the pleadings in this mandamus action. Some deal with relator's right of intervention and many with the merits of relator's action against defendant, Phil Magidson. We are interested only in the issues that involve relator's right to intervene. The facts on these issues are as follows: Case No. 87374 is a declaratory judgment action to ascertain and declare the respective rights, duties and obligations of Seco-Lite and Magidson under their contract executed in July, 1943. Under this contract Magidson agreed to secure contracts and orders for Seco-Lite for aileron hinge brackets and airplane bolts to be manufactured by Seco-Lite, and to engineer the tooling and supervise the manufacturing of those products, the profits to be shared equally by the parties. Seco-Lite alleged that Magidson violated that contract and for that reason he is not entitled to receive anything from the profits thereunder. Magidson's answer alleged that the agreement was one of joint adventure under which he is entitled to one-half of the profits. He prayed for an accounting and for judgment of 50 per cent of the profits thus ascertained, and for $25,000 additional as punitive damages for fraud and deceit. Prior to the filing of the answer Magidson had moved for the appointment of a receiver for Seco-Lite and, by agreement and in lieu of such appointment, Seco-Lite deposited with the registry of the court the sum of $90,000. That case had been pending seventeen months, and a week before the case was set for trial relator sought to intervene. Relator was Trustee in Reorganization of Christopher Engineering Company, a corporation. He was authorized to intervene by the federal court in Christopher's reorganization proceeding and, for such purpose, he duly complied with the procedure prescribed by Sec. 21 (c) (1) of the Civil Code, Sec. 847.21 (c) (1), Mo. R.S.A.

Relator bases his right to intervene upon the contention that whatever amount the trial court determines is due Magidson in the Seco-Lite case lawfully and equitably belongs to the relator and, therefore, he has a direct interest in the accounting and liquidation thereof, and will be bound by the result of that accounting. This claim is based upon these alleged facts: That the Christopher Engineering Company had a written contract with Magidson dated July 1, 1942, whereby Magidson agreed to devote all of his time, skill, ability and services to the interest of Christopher for a period of two years and wherein it was further agreed that Magidson would:

"Well and faithfully perform all the duties of said employment with skill and fidelity [259] and that he will not willfully neglect nor depart from said service or employment, nor do, suffer, or consent to the doing of any act or thing detrimental to the interests of said first parties, [Christopher] and will, during the continuance of said employment, render to them his best ability, knowledge and skill;

"During the term of this employment . . . not, directly or indirectly, engage in like or similar employment on his own behalf or on behalf of any other person and neither during the term of this employment nor thereafter will he disclose to any person or persons, except by the consent of the first party, any information or knowledge of matters and things acquired, directly or indirectly, by him as a result of or in the course of his said employment concerning the business of the first party or that of any of first party's clients or employers, nor will he, without such consent, appropriate, use or employ to his own advantage or the advantage of others, either directly or indirectly, any of such information or knowledge;

"Not, within a term of two years subsequent to the termination of the employment provided for herein, whether the same be terminated by expiration of the term provided, or otherwise, directly or indirectly accept employment from any client or employer of the first party or prospective client or employer of the first party, knowledge of which relationship or prospective relationship came to him, directly or indirectly, in the course of his employment, nor will second party, [Magidson] during said period, accept employment from, or associate himself with, or employ any other person, now or hereafter employed by or associated with first party, to the end of undertaking or carrying on a like or competitive business."

Relator further states that at the time in question Christopher was engaged in tooling, manufacturing and selling aircraft and aircraft parts, supplies and equipment, including aileron hinge brackets and aircraft bolts; that Magidson entered upon his employment under the contract and acquired knowledge of the business of Christopher and the business of its clients and customers; that Seco-Lite, on or about July 15, 1943, entered into the business of tooling, manufacturing and selling the same products as Christopher, including aileron hinge brackets and airplane bolts; that on or about the same date Magidson, in violation of his agreement with Christopher, entered into a contract with Seco-Lite to secure sales contracts, engineer tooling, and supervise and assist with the manufacture of Seco-Lite's products; that Magidson used the knowledge acquired through his employment with Christopher to secure the contract with Seco-Lite; that he wrongfully and improperly, and without the consent of Christopher, and in violation of his agreement with Christopher, used the information and knowledge he acquired concerning Christopher's business to secure customers for Seco-Lite, and for the further purpose of engineering the tooling and manufacture of aircraft parts and equipment for Seco-Lite; that through such improper and wrongful acts and conduct, Magidson claims the $90,000 in the registry of the court; that Magidson has denied relator's rights with respect to the proceeds of the contract, and proposes to liquidate said contract and convert the proceeds thereof to his own use, as a result of all of which relator is without any adequate remedy at law.

Intervention was opposed by Magidson, resulting in an order of denial by the respondent. Relator then filed notice of appeal, and subsequently applied for and was granted our alternative writ of mandamus.

In the case of Trice et al. v. Comstock et al., 121 F. 620, l.c. 622, 623 and 627, Judge Sanborn, speaking for the Circuit Court of Appeals, Eighth Circuit, said:

"For reasons of public policy, founded in a profound knowledge of the human intellect and of the motives that inspire the actions of men, the law peremptorily forbids every one who, in a fiduciary relation, has acquired information concerning or interest in the business or property of his correlate from using that knowledge or interest to prevent the latter from accomplishing the purpose of the relation. If one ignores or violates this prohibition, the law charges [260] the interest or the property which he acquires in this way with a trust for the benefit of the other party to the relation, at the option of the latter, while it denies to the former all commission or compensation for his services."

"And, within the prohibition of this rule of law, every relation in which the duty of fidelity to each other is imposed upon the parties by the established rules of law is a relation of trust and confidence. The relation of trustee and cestui que trust, principal and agent, client and attorney, employer and an employe, who through the employment gains either an interest in or a knowledge of the property or business of his master, are striking and familiar illustrations of the relation."

"The rule upon this subject was clearly and not too broadly stated in the American note to Keech v. Sandford, 1 White T. Lead Cas. in Eq. (4th Am. Ed.), p. 62, *page 58, in these words: `Wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated.' The facts of the case in hand brought it squarely within this rule, charged the title which the agent Comstock acquired with a constructive trust for the benefit of his principals, and furnished substantial ground for their application to a court of equity for appropriate relief."

In the case of Harrison v. Craven, 188 Mo. 590, l.c. 608-609, 87 S.W. 962, we said:

"Assuming the fiduciary relation resulting from the contract of agency, it is elementary law, not needing fortification by citation of authority, that an agent may not speculate off of his principal in the subject-matter of his employment, that he may not place himself in a situation where self-interest impels him to overreach his principal, that he may not seize benefits with both hands, coming as well as going, and further that a court of conscience, when a trust results from such wrongful conduct, will stretch forth its arm and strip him of all benefits acquired at the expense of his principal and which should enure to the principal's advantage under the terms of the employment."

In the case of Murdoch v. Milner, 84 Mo. 96, l.c. 102-103, we said:

"The facts thus disclosed by the evidence brings plaintiff's case within the operation of the principle that in all cases where a person is actually or constructively an agent for another, all profits and advantages made by him in the business beyond his ordinary compensation is to be for the benefit of his employer."

In the case of Holt v. Joseph F. Dickmann Real Estate Co., 140 S.W.2d 59, l.c. 64, the St. Louis Court of Appeals said:

"An agent is not allowed to put himself in a position antagonistic to his principal, or speculate in the subject of the agency. The most open, ingenuous, and disinterested dealing is required of him. If he secretly purchases the subject of the agency through a straw party and sells it for a profit, he must account to his principal for the profit. This is so not because of any peculiar implication of fraud, but because it is against public policy to permit the agent to retain the profits thus procured, since this would invite or induce the commission of fraud."

In Jackson v. Smith et al., 254 U.S. 586, the receiver of a building and loan company agreed with his lawyer and a third party that the third party would bid on property that was being foreclosed by a trustee in a deed of trust, which deed of trust was given to secure a note owned by the building and loan company. There was no evidence that the trustee's sale was not conducted fairly and openly, but the Supreme Court of the United States held that under these facts the trustee violated his obligation as a fiduciary, thereby rendering him and his associates jointly and severally liable to the trust estate for all profits resulting from the purchase.

Under the above authorities there can be no doubt that if Magidson were in the employ of Christopher as alleged by relator, then he stood in a fiduciary relationship with his employer, the Christopher [261] Engineering Company. Under these conditions, as an employe, he would be governed by the same principles of law as if he were a trustee for Christopher. Trice v. Comstock, supra; Dennison Co. v. Aldrich, 114 Mo. App. 700, 91 S.W. 1024. If he used the information concerning the business of Christopher acquired while in its employ while working for Seco-Lite, contrary to the terms of his employment, then whatever profits he made with the latter company equitably belong to relator as trustee for Christopher. Therefore, whatever sum is determined to be due Magidson by an accounting in the case of Seco-Lite v. Magidson would in equity be held by him as trustee for relator. Of course, we are not passing on the merits of the controversy between relator and Magidson. That can only be done after a trial in the proper court. It may be that relator cannot prove his allegation, but he is entitled to a trial of them.

Relator bases his right to maintain this action to compel the respondent to permit him to intervene upon paragraph (a) of section 21 of the new Civil Code (847.21 R.S.A.). It reads: "(a) Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof."

Prior to the new code there was no general statute in Missouri. Particular statutes did exist authorizing intervention in specific proceedings.

"Intervention as a matter of right is covered by paragraph (a). It incorporates the other intervention statutes giving such absolute right thus continuing the prior law. It gives an unconditional right to intervene when the representation of the applicant's interest by existing parties `is or may be' inadequate and the applicant `is or may be' bound by a judgment in the action. Intervention under this provision is now made an absolute right which was, in part, discretionary prior. Paragraph (a) also gives an unconditional right to intervene when applicant may be adversely affected by a distribution or other disposition of property in the custody of the court or of a court officer. This but continues the prior nonstatutory law, as for example in receiverships, but with particular emphasis upon the absolute right to intervene." Carr Missouri Civil Procedure, Vol. 1, Sec. 70, page 226.

"It is submitted that code Section 21 should be construed liberally to permit broad intervention. This is in accord with the spirit of the code." Carr Missouri Civil Procedure, Vol. 1, Sec. 70, page 227.

Since paragraph (a) of section 21, supra, gives an absolute right to intervene to a person who brings himself within the terms of this paragraph, the trial court has no discretion in the matter. If a trial court should wrongfully deny a person application to intervene, the court can be compelled to permit intervention. The applicant having a legal right to intervene but denied this right by the trial court, mandamus is the proper remedy to afford relief to the applicant.

We have already held that relator has presented a state of facts showing that whatever sum of money is due Magidson in the accounting in the Seco-Lite case equitably belongs to relator. Under these facts relator may not be adequately represented by Magidson in the Seco-Lite case. Magidson's interest is adverse to relator. Magidson could settle his claim with Seco-Lite for a far less sum than he might be entitled to if that case were tried on the merits. Also relator would be bound by the amount of recovery that Magidson obtains in the Seco-Lite case, this for the reason that the amount recovered by Magidson would show the profits he illegally made by breaching his contract with Christopher. The authorities quoted above hold that whenever an agent or employe violates his fiduciary relationship with his principal or employer and obtains a profit thereby, the profit equitably belongs to his principal or employer.

For instance, if upon trial of that case it is found that Magidson is not [262] entitled to any recovery, relator would be bound by that judgment. Relator has elected to pursue his equitable remedy for Magidson's breach of his contract with Christopher. Having made his election, relator may not be adequately represented by Magidson and he may be bound by the judgment Magidson obtains in the Seco-Lite case. This brings relator within provision (2) of paragraph (a) of section 21, supra.

Under these circumstances we think that relator would also come within provision (3) of that paragraph which provides that an applicant may be permitted to intervene "when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof." This for the reason that if the sum found due Magidson equitably belongs to relator, relator would be adversely affected by the distribution to Magidson of any part of the $90,000 in custody of the court.

Respondent contends that relator's application to intervene was not timely made and should be denied for that reason. Section 21 (a) does say "upon timely application anyone shall be permitted to intervene in an action." Respondent's order denying relator's application was not based upon the fact that it was not timely made, but on other grounds.

In the case of Innis, Speiden Co. et al. (Brogdex Co. of California, Limited, Intervener) v. Food Machinery Corporation, 2 Federal Rules Decision 261, l.c. 265, the court had before it the federal section of the code for intervention, Section 24 (a), which on this point is identical with our Section 21 (a). In holding the application timely, the court said:

"I cannot conclude upon consideration of all the circumstances that the application for intervention is not timely. While the case is nearly four years old it was not set for trial until the day upon which the application for intervention was made."

In the case at bar, the Seco-Lite Company filed its petition on June 1, 1945. The defendant, Magidson, did not file his motion to appoint a receiver until April 9, 1946. That case was set for trial on November 12, 1946, and relator's application to intervene was filed on November 6, 1946.

There is no showing that the position of the parties to the original suit was changed to their detriment by filing the application for intervention. Zeitinger et al. v. Hargadine-McKittrick Dry Goods Co. (Houts, Intervener), 298 Mo. 461, 250 S.W. 913.

We hold, therefore, that intervention cannot be denied upon the ground that the application was not timely.

Respondent contends that to allow relator to intervene would deprive him of his constitutional right to a trial by jury. Section 22, Article 1 of the 1945 Missouri Constitution states "that the right of trial by jury as heretofore enjoyed shall remain inviolate." This constitutional provision does not give a trial by jury in an equity action. Relator has elected to pursue an equitable action and, therefore, respondent's contention is without merit.

Respondent also contends that we do not have jurisdiction because it is not shown with certainty that the amount involved is in excess of $7,500. Our jurisdiction is invoked under Section 4, Article V of the Constitution which gives us superintending control over cirsuit courts and states that we may issue and determine original remedial writs. Therefore, it is not necessary that over $7,500 be involved.

There are other points briefed but we will not discuss them because they deal with the merits of relator's claim. These should be decided by the trial court.

From what we have said, our peremptory writ should be awarded. It is so ordered. All concur, except Leedy, J., doubtful.