156 Mo. App. 187 | Mo. Ct. App. | 1911
Plaintiff below, appellant here, on December 14, 1908, commenced action against defendant, the,petition containing three counts, each count setting up sale and delivery of printing paper of different brands, the sales made at different dates. In the first count the amount claimed is $740.34, with interest at six per cent from the 15th of May, 1908; in the second count the amount claimed is $503.67, and interest at six per cent from the 15th day of June, 1908; in the third count the amount claimed is $181.47, and
Admitting the incorporation of the parties, the answer is a general denial. Following this a counterclaim is set up which, in substance, averred that defendant, on purchases of printing paper from plaintiff between the 2d 'of January, 1905, and the 31st of March, 1908, had paid to plaintiff sundry sums of money for which it was not indebted to plaintiff “and which were paid to it under a fraudulent mode of business or system practiced by plaintiff, and such sums of money were had and received by said plaintiff to the use of defendant herein.” It is further averred that under the system of plaintiff, the purchases of printing paper were uniformly invoiced at weights in excess of the true weights thereof and the amounts in money of overpayment by defendant, because of such excess in weights, were paid by plaintiff and received by defendant as aforesaid, the dates of invoices, the weights set forth in them and the true weights of said purchases being shown by a statement filed, the aggregate amount of said excess in weights charged to be 61,500 pounds, the total amount of overpayments alleged to be $2254.48, for which amount defendant demands judgment. The statement of account attached and referred to is dated December 31, 1907, and contains over 250 items.
At the February term of the circuit court plaintiff filed a motion to make the answer of defendant more definite and certain as to the counterclaim, it being charged that this part of the answer does not sufficiently acquaint the court or plaintiff with the ultimate facts upon which the defendant bases a legal claim for recovery," and that it is impossible to determine, from the "counterclaim stated in the answer, whether the alleged facts arise out of the contracts or transactions set forth in the petition as the foundation of plaintiff’s claim, or whether the counterclaim is connected with the subject of thé action,' or whether it arises in another cause of
“1st. That the demurrer to defendant’s counterclaim should have been sustained.
“2d. That the counterclaim does not state facts sufficient to constitute cause of action.
“3d. That the counterclaim does not state facts sufficient to constitute cause of action as a counterclaim.
“1th. That the judgment on said counterclaim is against the law and should have been for the demurrant, said Garnett & Allen Paper Company.”
This was overruled at the December term of the court, plaintiff excepting, and at that term filed its affidavit for appeal and bond for appeal to the St. Louis Court of Appeals, the appeal being granted. A month afterwards, but at the same term, plaintiff filed a motion to have certain nunc pro tunc entries .made. It is not necessary to set these out, for two reasons: First, learned counsel for appellant assign no error in this court on the action of the trial court in overruling the motion; second, so far as appears in the abstract, the motion was submitted to the court without any evidence in support of it.
It is recited in the abstract that within the time granted by the court, a bill of exceptions was duly signed, filed and made a part of the record. Nothing resembling a bill of exceptions is in the abstract, beyond these recitals.
The assignments of error made in this court are three:
“1. The court erred in overruling the .plaintiff’s motion to make more definite and certain the counterclaim in the defendant’s answer.
“3. The court erred in overruling the motion in arrest of judgment.” ■
It will be observed by this recital of the abstract that no motion for new trial was ever filed. What is called the “motion for new trial and in arrest of judgment,” is obviously a motion in arrest of judgment. It is directed solely at alleged errors in the record proper. Motions in arrest do not reach matters of exception. [McCarty v. O’Bryan, 137 Mo. 584, 38 S. W. 456.] They are directed solely at alleged errors in the record proper.
Without a motion for new trial and exception saved to adverse action thereon, the action of the court in overruling the motion to make the counterclaim more definite and certain is not subject to review by us, and the assignment of error on this by learned counsel for appellant - cannot be sustained. [Hays v. Foos, 223 Mo. 421, 122 S. W. 1038.]
The other assignments of error go to the record proper, that is to say, the petition, the answer, which contains the counterclaim and account filed with it, the demurrer and the judgment. Plaintiff, standing on the demurrer, of course interposed no reply.
We include in the record proper the account filed as an exhibit to the counterclaim. While ordinarily an exhibit is not to be considered as part of a pleading in passing on that pleading on demurrer, our statute (R. S. 1909, sec. 1832) specifically provides that an account attached to the pleading and referred to therein shall be a part of the record.
No attack is made before us on the form of the-judgment entered in overruling the demurrer, nor to the action of the court in entering judgment assessing damages without an inquiry. The errors assigned, as we have seen, apart from that as to the overruling of the motion to make the petition more definite anid certain, go to the counterclaim. Hence we in" no manner con
The questions for determination here are: Does the counterclaim set up a cause of action? Will the averments in the counterclaim support the judgment?
One of the points made by the learned counsel for appellant as against the counterclaim is that the cause of action attempted to be set up sounds in tort and has no connection whatever with the contract or transaction counted on in the petition. Barnes v. McMullins, 78 Mo. 260, at pages 269, 274-75-76, is cited in support of this. Without setting out the facts in that case, it is sufficient to say that they bear no resemblance to those in the case at bar, and that decision is in no manner applicable to this case. This counterclaim does not sound in tort. Divested of all surplusage and unnecessary matter, the counterclaim is practically what under common law pleading would be denominated a common count for money had and received. The defendant, granting that it had, as plaintiff contends, an action in tort, waived the tort and sued as on the implied contract, doing this in form called, under common law pleading, a common count for money had and received. That the defendant had an undoubted right to waive the tort has been recognized time and again by the text-writers, by the decisions of our courts and by courts of other jurisdictions in which the code system of practice prevail. Judge Bliss, in his work on Code Pleading (3 Ed.)‘, sec. 153, under the subdivision, “How the facts should be stated in treating a tort as a contract,” of, as that learned author says, “to use the old phraseology, waive the tort and sue as upon contract—that is, sue in assumpsit,” observes that while under the code there is no assumpsit or other common law form of pleading, the right to waive the tort and sue upon the contract is still recognized. In the note to this section 153 (foot-page 256), it is said that the phrase “ Waiving a tort,’ means no more than that by treating the matter as a contract he
In the case at bar the intent, gathered from the averments of the counterclaim and the attached account, to plead on the implied contract and-not in tort is plainly manifest. The pleader has waived the tort, as he had a. right to do. It is true that he avers that the payment was secured by plaintiff “under a fraudulent mode of business or system practiced by plaintiff,” but this falls far short of a charge of false representations and deceit and fraud made with intent to deceive defendant. Under the common counts, any evidence may be given, even of fraud, going to establish the fact that defendant.(here the plaintiff) has obtained money or property, for which, ex aequo et bono, defendant (here plaintiff) should ac-. count, and the defendant (here plaintiff) cannot defeat recovery by pleading his own fraud in defense. [Bliss, Code Plead., sec. 154.] At common law the action was in assumpsit, and it was necessary to aver, but not prove, a promise; the latter need not be proven, for the law implied it. Under the code abolishing unneces
The questions then recur, whether the averments of the matter pleaded are matters of counterclaim and whether the counterclaim, as these matters are there pleaded, will support the judgment?
It is clear from the statement in the counterclaim that the cause of action set up in this falls within the definition of a counterclaim as contained in section 1807, Revised Statutes 1909. On its face it appears to be a cause of action arising out of the transaction set forth in the petition as the foundation of plaintiff’s claim and connected with the subject of the action. The counterclaim charges that the transaction arose on purchases of printing paper by defendant from plaintiff. If we consider it as relating to dealings between the two parties with respect to the purchase and sale of printing paper, that would bring it under the first subdivision of section 1807.
If it be said that it does not appear to be the same sale or the same deal, it surely falls under the second
That it states á cause of action must be conceded, if it did no more than set out and charge, as it does, that plaintiff had and received the sums of money mentioned to the use and benefit of defendant. That is all that what are called these common counts require to' be set out and if it fulfills the requirements of our stab ute that the items of account be set out in the pleadings or that a copy of the account be attached to the petition, then it fulfilled the requirements of the statute as to pleading.
Considering the counterclaim and the attached account, as has been held by our Supreme Court, it is a sufficient statement of the ultimate facts relied upon for a recovery. [Meyer v. Chambers, 68 Mo. 626; Clifford Banking Co. v. Donovan Com. Co., supra.] If it is true that this counterclaim is lacking in definiteness, as said in Meyer v. Chambers, supra, the remedy was not by demurrer but by motion to make more definite and certain.
Learned counsel for appellant argue that in the absence of an express warranty, or of an allegation of a trust relation, or special facts or circumstances: other
On consideration of the case we find no reversible error. The judgment of the circuit court is affirmed.