Colliseum Athletic Assn. v. DillonColliseum Athletic Assn. v. Dillon
St. Louis Court of Appeals. Opinion Filed July 15, 1920.
- PLEADINGS: Challenging Sufficiency of: Objecting to Introduction of Evidence: Method Not Favored. The method of questioning the sufficiency of pleadings by objecting to the introduction of any evidence thereunder is not a court favorite.
- —: —: —: —: Demurrer Ore Tenus: Not so Searching as Written Demurrer. The objection to the introduction of any evidence under the petition constitutes a demurrer ore tenus, and, as such, does not reach the alleged defects therein to nearly the same extent and for nearly the same purpose as the more formal written demurrer authorized by our code of pleading; nor does it reach mere uncertainty or indefiniteness of averment, or the defect of pleading legal conclusions.
- —: —: —: —: Petition Construed Most Favorably to Plaintiff. On demurrer ore tenus, the аllegations of the pleading will be construed most favorable to plaintiff, and every fair inference drawn therefrom in plaintiff‘s favor.
CORPORATIONS: Incorporated Through Pro Forma Decree: Entitled to Sue as a Body Corporate. Where the petition avers that plaintiff is a duly incorporated association under the laws of the state of Missouri, through pro forma decree of the circuit court, the allegation is sufficient to entitle it to institute a suit as a body corporate and politic, in view of section 3433, Revised Statutes of 1909 , coming within the purview of article 10, chapter 33, Revised Statutes of 1909, and although by the pro forma decree it took the form of an incorporated social club, nevertheless it would appear to be a person within the meaning of the corporation laws, with the attendant rights to contract, sue, and be sued.- —: —: Defense of Ultra Vires Must be Pleaded. As a general rule, the defense of ultra vires must be pleaded to be available.
- CONTRACTS: Defense of Illegality: Must be Specially Pleaded. The defense of illegality of a contract sued on must be specially pleaded in the absence of anything in the petition disclosing such invalidity.
- CORPORATIONS: Defense of Ultra Vires: May be Raised by Demurrer Where Petition Shows Act or Contract Void. The rule that the defense of ultra vires cannot be raised by demurrer does not apply when the petition shows on its face that the act or contrаct is void and not merely voidable.
- PRIZE FIGHTING: Boxing: Not Illegal at Common Law. At common law it was not illegal to hold boxing or sparring exhibitions.
- CONTRACTS: Contract to Give Private Boxing Exhibition: Not Void on Its Face. The petition of an incorporated association against a boxing performer and managers for breach of contract to give a private boxing exhibition before the members of the association, which performance was tо consist of eight rounds of three minutes each, of scientific and skillful boxing, held to state a cause of action, the contract not appearing on its face to be void, notwithstanding
section 4681, Revised Statutes of 1909 , which prohibits public boxing. - ATTACHMENTS: Bond Insufficient: New Bond. Upon the institution of an attachment suit, plaintiff was required by
section 2300, Revised Statutes of 1909 , to give a bond in at least double the amount sworn to in the affidavit for the writ of attachment, and if such bond proved insufficient, a new bond could be required by defendants, bringing plaintiff under thе provisions ofsection 2303, Revised Statutes of 1909 . - —: Appeals: Appeal Operates as Supersedeas: Attachment Preserved in Full Force. An appeal in an attachment suit taken
by the plaintiff operates as a supersedeas of the judgment, the appeal so taken preserves the attachment in full force until the final determination of such appeal in the appellate court, or of the case upon a retrial in the trial court. - —: —: Nonsuit: Appeal Without Bond: Discretionary: Order on Sheriff to Deliver Moneys Void. The trial court, by granting plaintiff an appeal in an attachment suit without requiring any appeal bond, relieved the plaintiff of the necessity of giving such bond under
section 2335, Revised Statutes of 1909 , the trial court having the discretion to require an appeal bond or not as its judgment dictates, held that the plaintiff‘s failure to give an appeal bond did not authorize the court to order the sheriff to pay to the defendants or their attorneys of record the moneys held by virtue of the writ of attachment.
Appeal from the Circuit Court of the City of St. Louis—Hon. Benjamin J. Klene, Judge.
REVERSED AND REMANDED (with directions).
George W. Wellman, and D. J. O‘Keefe, for appellant.
(1) This being an action upon a contract entered into by appellant, a corporation organized by a pro forma decree of the circuit court of the city of St. Louis, under article X, chapter 33, Revised Statutes Mo. 1909, wherein appellant engaged the services of one of the defendants to give a private sparring exhibition before the members of plaintiff, it having paid defendants the contract price for such performance, and having in all other respects fully performed its part of the contract, has a right to maintain this action for a breach of the contract on the part of defendants. (a) It was not unlawful at common law to hold sparring exhibitions, nor is there any statutory law in this State prohibiting a corpоration organized as plaintiff from furnishing its members instructions in all kinds of athletics, including sparring or boxing, or giving entertainments of this kind to its bona-fide members, as set out in the contract relied upon in plaintiff‘s petition.
Bartley & Douglass and W. C. Mayfield for respondents.
(1) Appellant‘s briefs do not contain a statement in numerical order of the points relied on and such briefs should be disregarded by this court and no argument heard on errors attempted to be assigned therein for the reason that such brief does not comply with paragraphs 2 and 3 of rule 18 of this court. (2) The trial court did not err in sustaining defendants’ objection to the introduction of evidence, (a) The petition does not state facts sufficient to constitute a cause of action or to entitle plaintiff to recover. (b) The alleged contract set up in plaintiff‘s petition, for the breach of which it seeks a recovery in this action, was an ultra vires contract so far as plaintiff is concerned and could not be made the basis оf this action.
BARNES, C.—This suit in attachment was instituted in the circuit court of the city of St. Louis on October 16, 1914. A second amended petition was filed October 7, 1917. The answer was a general denial and a plea of another suit pending. The reply put in issue the allegations of the answer pertaining to the pendency of another suit.
The cause came on for trial before the court and a jury on June 14, 1917. As soon as plaintiff‘s first witness was called and sworn, an objection was made on behalf of each of the defendants, to the introduction of any evidence on the ground that the petition failed to state a cause of action against any of them. This objection was sustained. An involuntary nonsuit was entered, with leave to move to set the same aside, which motion was filed and overruled, and appeal duly taken and exceptions properly preserved.
At the succeeding term of court, uрon defendants’ motion, the court ordered the sheriff to pay to the defendants or their attorneys of record, the moneys held by virtue of the writ of attachment. The basis upon which this order was obtained, was that the plaintiff had appealed the case without giving any appeal bond. Plaintiff excepted to this order, and likewise to the overruling of a motion filed by it, to set aside the order, and appealed from the ordеr and the overruling of its motion. Both appeals are pending here upon one transcript.
The second amended petition, reads:
Comes now plaintiff and, with leave of court first had, files this, its second amended petition, and states, that it is a duly incorporated association under the laws of the State of Missouri, through pro forma decree of the circuit court of the city of St. Louis.
Plaintiff further states and for its cause of action against the above named defendants avers that on or about the 13th day of October, 1914, it entered into а contract with the defendant, John Dillon, wherein plaintiff employed said John Dillon to give a private boxing exhibition on or about October 14, 1914, before the members of the Coliseum Athletic Association, the plaintiff herein, in the city of St. Louis, Missouri, which performance was to consist of eight rounds of three minutes each of scientific and skillful boxing and for which service plaintiff agreed to pay said Dillon the sum of seven hundred and fifty and 00/100 dollars.
Plaintiff furthеr states that said Dillon represented himself to be and was a scientific and skillful performer in the art of self defense, and contracted with plaintiff to give a scientific and skillful boxing exhibition before the members of plaintiff, and at all times to use his best efforts to give a high-class performance; that defendant, Dillon, further agreed that when in the opinion of the authorized referee of said exhibition, that said Dillon was not honestly performing in rеndering said boxing exhibition, that said referee would be authorized under said contract to stop said exhibition, in which event no compensation was to be due or paid to the said Dillon.
Plaintiff further states that on the evening of the said 14th day of October, 1914, the time when said defendant, Dillon, was to give said boxing exhibition, and after all of plaintiff‘s members were assembled to witness the said boxing exhibition, the said defendant, Dillon, then refused to carry out his contract or begin his performance until plaintiff would deposit the sum of seven hundred and fifty and 00/100 dollars, with the defendant, Dillon‘s agents, Sam Murbarger and
Robert Stolkin, and thereupon plaintiff was obliged to pay, and did pay the said sum of seven hundred and fifty and 00/100 dollars, to said defendants, Murbarger and Stolkin, for said defendant, Dillon. That thereafter said defendant, Dillon, and one N. O. Brown started to give a pretended boxing exhibition, but refused to give a scientific and skillful boxing exhibition as he had contracted and agreed to give or to give any boxing exhibition of which he represented himself to be able to give and would give before plaintiff‘s members. That because of the said defendant Dillon‘s failure and refusal to give a boxing exhibition in accordance with his contract with plaintiff, the referee in charge of said performance being unable to get said defendant Dillon to give a scientific and skillful bоxing exhibition or any boxing exhibition, said referee in the beginning of the third round, then and there declared to said Dillon that he was not honestly performing and that the pretended efforts of said defendant was not a boxing exhibition and declared the pretended efforts of said Dillon, no exhibition and defendant Dillon refused to give a boxing exhibition.
Plaintiff further states, that it then demanded of said defendants, Murbarger, Dillon and Stolkin, a return of the said sum of seven hundred and fifty and 00/100 dollars, paid to them as aforesaid, for the said defendant Dillon, but said defendants, failed and refused to pay plaintiff said sum or any part thereof.
Wherefore, plaintiff prays judgment against the defendants for said sum of seven hundred and fifty and 00/100 dollars and costs of this action.
While the method of questioning the sufficiency of pleadings by objecting to the introduction of any evidence thereunder, is not a court favorite. [Hays v. The Estate оf Miller, 189 Mo. App. 72, 173 S. W. 1096], we find no occasion to add our criticism to such method in this case, an attachment suit in which the petition had been twice amended, the second one after the lapse of
The objection to the introduction of any evidence under the second amended petition constitutes a demurrer ore tenus, and as such, does not reach the alleged defects therein to nearly the same extent, and for nearly the same purpose as the more formal written demurrer authorized by our code of pleading. It does not reach mere uncertainty or indefiniteness of averment, or the defect of pleading legal conclusions (State ex inf. v. Arkansas Lumber Co., 260 Mo. 212, 283, 169 S. W. 145), and the allegations of the pleading will be construed most favorably to plaintiff and еvery fair inference drawn therefrom in plaintiff‘s favor. [State ex rel. v. Arkansas Lumber Co., supra; Hays v. The Estate of Miller, supra.]
We gather from the briefs that the demurrer ore tenus was sustained on the theory that the contract pleaded could not be made the basis of an action, and was beyond the scope of the powers granted plaintiff by its charter.
The petition avers that plaintiff is a duly incorporated association under the laws of the State of Missouri, through pro forma decree of the circuit court of the city of St. Louis. This allegation appears to be sufficient to entitle it to institute this suit as
The contract as pleaded is for a private boxing exhibition before plaintiff‘s members, to consist of eight rounds of three minutes each of scientific and skillful boxing. It contemplates the presence of an authorized referee, who is made the judge of whether or not defendаnt Dillon was “honestly performing.” Unless such contract is interdicted by some Missouri statute, it would appear legal; because, at common law it was not illegal to hold boxing or sparring exhibitions. [Commonwealth v. Mack et al., 187 Mass. 441; State v. Olympic Club, 47 La. Ann. 1095; State v. Burham, 56 Vermont 445, 447.]
A statute now obsolete, but in effect at the period covered by the contract, made it a misdemeanor for a dramshop keeper to permit a boxing or sparring exhibition or contest in his dramshop,
The contract employs some of the terms, and providеs for some of the usages usually involved at these ring encounters commonly called prize fights, such as the provision for eight rounds, under the supervision of a referee. On the other hand, the prize fighter and the public boxing exhibitor do not have a monopoly upon their use. The science and skill of boxing is best attained by conforming with the rules of the game, and the chief function of the referee is to enforce them. In this case he had the added duty of judging of whether or not Dillon was honestly performing as a scientific and skillful boxer. It was as much his duty to see that the exhibition of boxing, if private, did not degenerate into a prize fight, as to determine the plaintiff was not being imposed upon by a lack of science and skill on the part of Dillon. His task was a difficult one, perhaps, one fraught with the danger of prosecution for the commission of a felony under said section 4679, аs umpire thereof, and the plaintiff with loss of its charter upon quo warranto proceedings, and prosecution under the same statute.
We therefore hold that the petition states a cause of action, and that it was reversible error not to set aside the involuntary nonsuit upon plaintiff‘s motion therefor.
After the plaintiff had appealed the case, the court nisi, made an order directing the sheriff to deliver the attached moneys to defendants or their attorneys of
Upon the institution of this attachment suit, the plaintiff was required by
“. . . Upon the trial of the case upon the merits—either party may appeal—the plaintiff from the finding on the plea in abatement, or on the merits, as he may elect, or both; the defendant, if at all, on the whole case—either party giving such bond for that purpose as the court may require; and any such appeal shall operate as a supersedeas of the judgment or judgments appealed from, and, if by the plaintiff, shall preserve the attachment in full force until the final determination of such appeal in the appellate court, or of the case upon a retrial in the trial court. . . .”
Attachments аre special and extraordinary proceedings and the bond required by the statute to be given at the institution of the suit, was to cover all sums, damages and costs the defendants might be entitled to recover of plaintiff on account of the suit from the institution of the attachment until the final determination of the suit, and said section 2335 provides for the giving of such bond on appeal as the court may require, and that any such appeаl shall operate as a supersedeas of the judgment or judgments appealed from.
It is the appeal that operates as a supersedeas of the judgment, and when the appeal is taken by the plaintiff, the appeal so taken preserves “the attachment in full force until the final determination of such appeal in the appellate court, or of the case upon a retrial in the trial court.” [State ex rel. v. Parke-Davis & Co., 191 Mo. App. 219, 229, 177 S. W. 1070; Linck v. Troll, 84 Mo. App. 49.]
In view of the above and foregoing, the Commissioner recommends that the judgment be rеversed and the cause remanded with directions to the circuit court to set aside the nonsuit and to likewise set aside the said order upon the sheriff, for further proceedings not inconsistent with this opinion.
PER CURIAM:—The foregoing opinion of Barnes, C., is adopted as the opinion of the court. The judgment of the circuit court is, accordingly reversed and the cause remanded with directions to set aside the nonsuit, and likewise the order upon the sheriff, for further proceedings not inconsistent with the opinion. Reynolds, P. J., Allen and Becker, JJ., concur.