85 Mo. App. 453 | Mo. Ct. App. | 1900
— It was alleged in the plaintiffs’ original petition that W. H. Tillery & Co., a mercantile partnership composed of W. H. Tillery and Jacob Burns, were indebted to plaintiffs in the sum of $612.37, for goods sold and" delivered them by the plaintiffs; that while insolvent and in failing circumstances they sold their entire stock of merehan
After the return of the writ the plaintiffs filed an amended petition, the allegations of which were identical with those of the original except that those in respect to fraud were omitted and in lieu thereof there was one inserted to the effect that after all the assets of said mercantile partnership had been applied to the payment of its indebtedness there still remained unpaid the sum of about seven hundred dollars, including plaintiffs’ debt; that said defendant James F. Tillery agreed with the other defendants, W. H. Tillery and Jacob Burns, that if they would cause the said McCracken to
The defendant James E. Tillery thereupon filed a motion to strike out the amended petition of plaintiffs on the ground that as to him it stated an entirely different cause of action from that stated in the original petition.
The facts alleged in the two pleadings were the same except as to the purpose for which the said real estate was caused to be conveyed to defendant James E. Tillery. It is uncontrovertedly true that if said real estate was conveyed to said James E. Tillery for the purpose alleged in the original petition it could be subjected to a lien in favor of plaintiffs for the amount of their said debt. On the other hand, if it was conveyed to said James E. Tillery under the agreement alleged in the amendment then he, the said James E. Tillery, thereby became personally liable on such agreement to plaintiff for the amount of their debt. There are two tests by which to determine whether a second petition is an amendment or a substitution of a new cause of action: Eirst, whether the same evidence will support both petitions and second, whether the measure of damages will apply to both. Liese v. Meyer, 143 Mo. 547; Scovill v. Glasner, 79 Mo. 449; Sauter v. Leveridge, 103 Mo. 621; Holt v. Cannon, 114 Mo. 519.
It is perfectly obvious that the same evidence will not support both of these petitions. While evidence tending to
The character of the evidence which it would require to support the allegations of the amendment would in part be quite different from that required to support those of the original petition. The rule seems to be that the quantity of the proof need not be the same in both cases but that it must be the same in its character. If both the quality and quantity
We must therefore conclude that the cause of action alleged in the amended petition was a different cause of action than that alleged in the original petition, and for that reason the motion of the defendant James E. Tillery to strike it out should have been sustained.
The defendant W. H. Tillery filed a demurrer to the plaintiffs’ amended petition on the ground that there was a misjoinder of parties defendant, which was by the court overruled. But instead of standing on his demurrer he filed an answer to the merits and thereby waived and abandoned whatever vantage ground he may have acquired by demurring. State v. Sappington, 68 Mo. loc. cit. 454; Spillane v. Railway, 111 Mo. loc. cit. 562. And the objection taken by the demurrer can not be noticed on motion for a now trial or in arrest of judgment. Higgins v. Railway, 36 Mo. loc. cit. 431.
No error is perceived in the action of the court in'striking out all that part of the answer of the defendant W. H. Tillery which pleaded certain facts as showing that the defendant James F. Tillery was not liable or bound in any way for the payment of the plaintiffs’ debt, since it clearly appears that these facts constituted no defense to the cause of action alleged by plaintiffs as against him. He admitted by his answer his own indebtedness to plaintiffs as alleged by them in their petition and therefore he was in no way interested in the defense of the defendant James E. Tillery, nor could he be allowed to make such defense for him. The transaction alleged in the amended petition between the partnership and the defendant James E. Tillery, by which he, the
The defendant Bums made default and, as already stated, the defendant W. H. Tillery in his answer expressly admitted that he and Bums were indebted to the plaintiffs in the amount claimed in the petition of the latter. It is quite difficult, therefore, to perceive what issue there was in the case which it was the duty of the court, on the demand of the defendants to submit to a jury. There was no issue of fact under the pleadings requiring the intervention of a jury and therefore no error is perceived in the action of the court in denying the said defendants’ request. The court on the pleadings was authorized tar render judgment for plaintiffs against defendants W. H. Tillery and Burns.
The judgment will accordingly be reversed as to defendant James E. Tillery and affirmed as to "the other defendants.