B. Adler & Co. v. St. Louis & San Francisco Railroad

110 Mo. App. 339 | Mo. Ct. App. | 1905

BROADDUS, P. J.

— This suit was begun in a justice’s court where judgment was rendered against the defendant by default, from which it appealed to the' circuit court where it was tried anew, and where plaintiff again prevailed, and defendant again appealed. The suit, as originally instituted before the justice, was upon a statement in the form of an account which upon its face showed that it was for goods sold and delivered. In the circuit court plaintiffs were allowed to amend their statement making it a claim against the defendant as a common carrier for damages to goods while in transit. The defendant objected to the amendment on the ground that it was a substitute of one cause of action for another. The original account was made .out on one of the billheads of the plaintiff and is headed .as follows:

“St. Louis & San Francisco R. R.

“Bought of B. Adler & Co., Wholesale. Millinery.”

Then follows terms upon which goods were sold by plaintiffs and other matters, such as the number of their place of business, etc.; and then the different items of the account and the price of each. On the back of the paper is indorsed the style of the case, under which is written the words: “Damages for injury to goods in transit as per statement hereto attached $50.” The summons to defendant is, to answer the complaint of plaintiffs founded upon a petition for damages.

The contention of plaintiffs is that defendant was sufficiently notified by said indorsement upon the account filed and by the recitation in the summons, of the cause of action it was required to answer. That is certainly true, but it does not necessarily follow that the parties are concluded thereby, otherwise plaintiff's might be compelled to try their case upon a cause of action they did not have. It is true, too, that section 3859, Revised Statutes 1899, provides that the summons shall state the nature of plaintiff’s suit and the sum demanded. And it is held that a summons that fails to make such statement is void. [Reinhardt v. Kempf, 72 Mo. App. 646; Bradenburger v. Easley, 78 Mo. 659.] It needs no argument to refute the idea that an indorsement on the back of a pleading could have the effect of varying or contradicting the pleading itself. The indorsement may have been made by some person other than the pleader. In this instance it appears to have • been made by the justice, as it resembles his handwriting.

Plaintiffs contend that they had the right to amend their statement, as it appears that their intention was to sue defendant as a common carrier and not for goods sold.' The intention of the pleader must be ascertained from the contents of the pleading, and there is a wide difference between a cause of action for goods sold and one against a common carrier for goods damaged in transit.

Plaintiffs, however, insist that they had the right to amend under section 3853, idem. Said section refers to the amendment of defective or insufficient statements. The statement here was not defective or insufficient. It properly stated a good cause of action, consequently said section has no application.

Many authorities are cited to the effect that the law governing practice in justices ’ courts should be liberally construed, but none have been found authorizing an amendment substituting one cause of action for another. On the contrary, all the decisions of the State hold that it cannot be done.

For the reason given the cause is reversed.

All concur.