9 Mo. App. 446 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This was an action for money alleged to have been earned by the plaintiffs, as agents for the defendant, as commissions on certain sales of merchandise. There are two counts in the petition. The case was tried in the court, below without a jury, and judgment was rendered for the defendant on the first count, and for the plaintiffs on the second count. The defendant alone appeals ; and therefore the questions which arise depend wholly upon the second count.
The two counts are blended together in a single paragraph, and read as follows : “ Plaintiffs state that they are a. firm doing business in the City of St. Louis and. State of Missouri, under the style of Clark & Kennett; that in May, 1878, they entered into an agreement with defendant whereby plaintiffs undertook to sell defendant’s sheet-
At the commencement of the trial the defendant objected to any evidence being offered under the pleadings, as they then stood. This objection the court overruled. . As. the judgment which is before us for review was entered under the second count only, this objection calls in question the-sufficiency of that count of the petition. The .writer .of this opinion, speaking only for himself, is of .opinion that, the practice of answering a defective petition and.waiting until the witnesses have been assembled for the trial, and
But it seems clear that the second count of this petition states no cause of action whatever. The rule, both at common law and under our system of pleading, is that each count in the petition must state a good cause of action within itself (Leabo v. Detrick, 18 Ind. 414; Day v. Vallette, 25 Ind. 42 ; Mason v. Weston, 29 Ind. 561; Silvers v. Railroad Co., 43 Ind. 435, 445 ; Durkee v. Bank, 13 Wis. 216, 222; Nelson v. Swan, 13 Johns. 483), and cannot be aided by a preceding count, unless such reference is expressly made. Crookshank v. Gray, 20 Johns. 344 ; Stiles v. Nokes, 7 East, 493 ; Hitchcock v. Munger, 15 N. H. 97 ; Mardis v. Shackleford, 6 Ala. 433, 436; Morrison v. Spears, 8 Ala. 93 ; Robinson v. Drummond, 24 Ala. 174 ; Curtis v. Moore, 15 Wis. 134, 137; Catlin v. Pedrick, 17 Wis. 88; Sabin v. Austin, 19 Wis. 421; Barlow v. Burns, 40 Cal. 351. The rule is the same in regard to counts in the answer. National Bank v. Green, 33 Iowa, 140. See also Maupay v. Holley, 3 Ala. 103; Dent v. Scott, 3 Har. & J. 28; Swift v. Woods, 5 Blackf. 97; Wetherill v. The Inhabitants, etc., 5 Blackf. 357 ; Markin v. Jornigan, 3 Ind. 548 ; Denham v. Stilwell, 3 Robt. 653. The rule was somewhat liberally applied under the old system, where the several counts in- a declaration, though in theory stating different causes of action, were in fact different statements of the same cause of action; so that the first count in a declaration in assumpsit, which failed to aver
Tested by these principles, the second count of the declaration, on which the judgment appealed from was rendered, is so defective as not to be aided by verdict, even under our very broad statute of jeofails. If it is to be regarded as a count ex contractu, it does 'nob set out any contract between the plaintiffs and the defendant, whereby the plaintiffs agreed to become the agents of the defendant to sell their iron, and whereby the defendant agreed to pay the plaintiffs any commissions on such sales, and if so, what commissions. Nor does it show any contract or engagement which bound the defendant to ratify the alleged sale of iron to Bridge, Beach & Co., and to deliver the iron in accordance with the terms of such sale. It further states that the plaintiffs were prevented from delivering the iron which they had sold to Bridge, Beach & Co., but neither.it
If we are right in these views, it becomes unnecessary to consider the other errors assigned, for it is not likely that the same rulings would be made if the cause were tried under proper pleadings.
The judgment is reversed and the cause remanded.