Barnett, Haynes & Barnett v. Colonial Hotel Building Co., 137 Mo. App. 636

Barnett, Haynes & Barnett v. Colonial Hotel Building Co.

137 Mo. App. 636 | Mo. Ct. App. | 1909

OPINION.

GOODE, J.

(after stating the facts). — 1. The finding that the cause of action accrued upon defendant’s acceptance of Caldwell & Drake’s bid at Springfield, shows the court took for true the testimony that the right of plaintiffs to be paid for the plans and specifications they furnished, was conditioned on the possibility of erecting the house for a maximum price ($180,000). But this finding was rather of the time than of the place of accrual, and the latter is the circumstance on which the question of jurisdiction turns. However, the findings as a whole indicate the court believed the place was Greene county. Whether this conclusion is correct or not depends on the meaning of the phrase “where the cause of action accrued,” in the statute which says suits against corporations shall be commenced either in the county where the cause of action accrued, or in one where the corporation has or keeps an office or agent for the transaction of usual and customary business. [R. S. 1899, sec. 997.] The position taken by counsel for plaintiff is that the phrase *645means, when applied to the present case, the place where the main part of the labor of preparing the plans and specifications plaintiffs had agreed to furnish, was done; which place was St. Louis and, therefore, the cause of action accrued in that city. The argument advanced in support of this proposition, rests on the idea that the place of performance of the contract was the venue where plaintiffs’ cause of action accrued; and taken in this sense the reasoning possesses merit. But in the argument the place where the work was prepared is confounded with the place of performance of the contract, though the two localities would not necessarily coincide. The court below found the parties did not expressly stipulate where either was to perform its obligation and that the place of performance would have to be inferred from other facts. It would have been remarkable if a place where plaintiffs should prepare the plans and specifications had been stipulated; for it was of no importance to defendant whether this work was done in Springfield, St. Louis, or somewhere else. Performing it without more, would not amount to performance of the contractual obligation; and on the other hand, the contract could be performed even if plaintiffs did not work on the plans and specifications, but had some one else prepare them. Full discharge of their duty by plaintiffs would consist in turning over to defendant for its use, such plans and specifications as had been agreed upon (2 Parsons, Contracts [9 Ed.], 788, 686), and undoubtedly the parties understood these were to be delivered at Springfield, and a large installment of the price was paid there. Conceding for the present plaintiffs furnished the agreed plans and specifications, thereby doing what they had undertaken to do, their cause of action for the balance of the price accrued when and where they were to furnish them and defendant was to pay. A man’s cause of action for a breach of a contract in which he is obligee, is composed, at most, of his contractual right, the other party’s breach and the *646remedy for the breach. [Pomeroy, Code Rem. (4 Ed.), sec. 347, *453, et seq.] In Western Wool Co. v. Hart (Texas), 20 S. W. 131, the Supreme Court of Texas decided a St. Louis corporation might be sued on a contract made in Texas to be performed in St. Louis, as the statute of the State authorized such a suit in the venue where the cause of action, or part of it, arose. The opinion adopted the theory that the contractual obligation was as much a part of the cause of action as the breach, and as said obligation was formed in a Texas county, the proper venue was there. In determining the venue of actions on contracts when by statute the venue was made to depend on the place of accrual of the cause of action, it was long questioned by the English courts whether both the contractual obligation and the breach must have arisen in a given venue, for a suit to be maintained therein against the defendant if he resided elsewhere, or whether it was sufficient if the breach happened within the territory, though the contract had been entered into elsewhere. The question was settled at last in favor of the latter rule in Vaughn v. Weldon, L. R. 10 C. P. 47, the court adopting the doctrine of Jackson v. Spittal, L. R. 5 C. P. 542, an opinion wherein the decisions pro and con were examined. It follows that in England a statute like the one we have before us, confers jurisdiction on a court of an action for breach of contract, if the breach occurred in the venue of the court, as that event would be treated as the accrual of the cause of action. The decision of the Supreme Court of this State in Rippstein v. Insurance Co., 57 Mo. 86, that the cause of action on a policy of insurance written in one county accrued in another where the insured died, is analogous in principle to those English cases. We know of no authority anywhere for the proposition that an action will lie in a venue where the contract was neither formed, nor to be performed, nor breached; yet such is the posture of this case as regards the St. Louis venue. Certainly if all those acts *647happened in one venne, the canse of action could not be regarded as having accrued in another where none of them happened. We refer to O’Donahoe v. Wiley, 43 Q. B. (Upper Canada) 350, for a thorough examination of this question and a decision that an action for breach of contract will not lie outside the venue where the obligation was both assumed and broken. It appeared the defendants in the Canada case were merchants in New York who had instructed the plaintiff by telegram to represent them in certain insolvency procedings in Toronto where the plaintiff was practicing law. He rendered the services and upon the refusal of tlhe defendants to pay him, instituted an action to recover in a Toronto court, whose jurisdiction of the cause depended, under the statute, on whether the cause of action had arisen in Upper Canada. The court decided the contract had been formed in New York where the defendants had given their consent to employ plaintiff, and cited authorities for the proposition that a contract between two parties who do not reside in the same place, is entered into at the place where final assent is given by one party to the terms proposed by the other. [2 Parsons, Contracts (9 Ed.), 730, 579; McGivern v. James, 33 U. C. R. 211; Bruil v. Relief Assn., 72 Wis. 430.] There can be no doubt about the soundness of this doctrine generally, or that the evidence justified the findings which go to show in the present case, that the contract for the employment of plaintiffs was entered into in Springfield, when the board of directors ratified the action of the building committee and notified plaintiffs by letter. In the O’Donahoe case, supra, it was insisted that as the attorney was to perform the agreed services in Canada, his cause of action accrued there. This contention was rejected, the court holding it accrued in New York where the contract was formed and the refusal to pay happened.

*648Plaintiffs’ counsel have cited us to the following cases which he thinks support his position: Blythe v. Phillio, 12 Texas 127; Hillary v. Hair Grower Co., 23 N. Y. Cupps 1016; Maxwell v. Railroad, 34 Fed. 287; Conn., etc., Co. v. Railroad, 23 How. Pr. 180; Heller v. Railroad, 70 N. Y. 225; Burckle v. Eckhardt, 3 N. Y. 133. In our view all those opinions, unless it he the last one, are adverse to plaintiffs upon a careful perusal. In such as were actions on contracts, the courts, in striving to ascertain the proper venue, laid stress on the place of breach. We add another authority for the proposition that the right venue is where the breach occurred, at least, if the contract was formed there, as it was in the case at bar. [Perry v. Transfer Co., 19 N. Y. Supp. 239.]

2. Defendant did not waive its plea to the jurisdiction of the St. Louis Circuit Court by pleading also in bar and setting forth the two pleas in the same answer. The jurisdiction was not challenged because of defective service of the summons shown on the return and open to attack by motion, or for anything appearing-on the face of the petition and therefore ground of demurrer. Until defendant pleaded the court was shown by the record to have jurisdiction, and that, in truth it did not, was because of facts in pais. An issue could only be raised by averring the facts, as the plaintiffs themselves recognized when they alleged in their petition the cause of action had accrued in St. Louis, thus tendering- a jurisdictional issue. In order to avail itself of the defense of lack of jurisdiction, defendant was compelled to traverse this allegation, and might accompany the traverse with the counter-averment that the cause of action accrued in Greene county. This would have been good pleading at common law; but as the plea to the jurisdiction was dilatory, perhaps under that system it would have been waived by pleading at the same time to the merits. Under the code system most, and probably all, pleas in abatement may be united in *649the same answer with a plea in bar, without waiving the former plea. As to pleas to the jurisdiction, this has been settled law since the decision in Little v. Harrington, 71 Mo. 390, wherein prior decisions to the contrary were overruled. [Byler v. Jones, 79 Mo. 261; Y. M. C. A. v. Dubach, 82 Mo. 475; Cohn v. Lehman, 93 Mo. 574, 581; Christian v. Williams, 111 Mo. 429; Coombs Com. Co. v. Block, 130 Mo. 668; State ex inf. v. Vallins, 140 Mo. 524, 536; Johnson v. Dettrick, 152 Mo. 243, 255 (which holds want of jurisdiction apparent on the face of a petition may be raised either by demurrer or answer) ; State ex rel. v. Spencer, 166 Mo. 279, 286; Meyer v. Insurance Co., 184 Mo. 481, 487; Little Rock Trust Co. v. Railroad, 195 Mo. 669, 682; Kingman, etc., Co. v. Bantley Bros. Co., 137 Mo. App. 308, 118 S. W. 500.] We think the opinions which are invoked as prescribing a different rule,, will be found to have been pronounced in cases where want of jurisdiction appeared from a defective return to the writ of summons, or elsewhere on the face of the proceeding and could have been taken advantage of by motion or demurrer. [Kronski v. Railroad, 77 Mo. 362; Fitterling v. Railroad, 79 Mo. 504; Newcomb v. Railroad, 182 Mo. 687, 707; Thomasson v. Railroad, 117 Mo. App. 110; —Mo. —, — S. W. —.]

3. As it is clear this defendant did not waive its jurisdictional defense by pleading it in an answer which also contained a plea in bar, the third question is whether there was such a general appearance by defendant as conferred jurisdiction. In Julian v. Star Co., 209 Mo. 35, 96, the Supreme Court held a defendant might waive a jurisdictional defense dependent on venue, if the court had jurisdiction of the class of cases to which the particular action belonged. And it has been intimated in some of the opinions cited supra, that though a defendant may plead in abatement and bar in a single answer, the former plea ought to be tried before the merits are tried, and the defendant ought to insist on this course. We do not decide whether or *650not the duty is so absolute that omitting it will waive a plea in abatement, but will only state what the Supreme Court has said on the subject. In Byler v. Jones, the opinion, while permitting the joinder of the two pleas, remarked: “the court in the exercise of its discretionary powers in directing the trial of issues before it, ought to settle the matter of its own jurisdiction before going into a trial of the cause, which presupposes the rightful jurisdiction of the court at every step.” In Newcomb v. Railroad, the defendant had raised the question of jurisdiction by a plea joined with an answer to the merits, when he might have raised it by motion. Besides condemning, this practice, the opinion blamed the defendant for not calling the attention of the lower court to his jurisdictional plea and insisting on a trial of it before witnesses had been examined on the merits (182 Mo. loc. cit. 708, 709). In the case at bar defendant provided in the stipulation it signed against waiver of this defense, and consented to a trial by the court with the reservation that it should be determined. Though evidence was introduced both on the merits and the plea in abatement, the court passed on the latter only and then declared it would be improper to decide anything upon the merits. Both parties participated in this procedure, and as the issues were tried by the court without a jury, and the jurisdictional defense was the one determined, we do not perceive how plaintiffs could have been prejudiced either in the matter of costs or confusion of issues.

The judgment will be affirmed.

All concur.