Heinrich v. Missouri & Illinois Coal Co.

102 Mo. App. 229 | Mo. Ct. App. | 1903

BLAND, P. J.

(after stating the facts as above.) — Defendant objected to the introduction of any evidence by plaintiff on the following grounds: First, “because the subscription paper was not filed in the justice of the peace court and for this reason the justice acquired no jurisdiction of the subject-matter of the suit,” and, second, “because the subscription.paper was not filed in the circuit court and the plaintiff had no right to introduce any evidence without first filing the paper.” A subscription paper of the character of this one is not comprehended within section 3852, Revised Statutes 1899. which provides that in suits commenced before a justice of the peace, the instrument sued on shall be filed with the justice before any process shall be issued. Hannibal, Ralls County and Paris Plank Road Co. v. Robinson, 27 Mo. 396; Workman v. Campbell, 46 Mo. 305. Nor is it comprehended within section 643, of the Code of Civil Procedure, providing that any petition or other pleading, when founded upon an instrument of writing charged to have been executed by the other party, the instrument must be filed with the pleading. Authorities, supra.

It is also contended by defendant that the petition failed to show that plaintiff has any legal capacity to sue. The subscription paper shows on its face that it contemplated that each subscriber (all of whom were evidently interested in the coal trade) was desirous of protecting that trade against frauds and for this purpose agreed that each would pay a certain sum per month to plaintiff, plaintiff being left free to employ whatever means he deemed necessary to protect the trade.

Plaintiff testified that for the purpose of protecting the coal trade, he employed and paid both detectives and attorneys, and had a detective in his employ at three dollars per day at the time of the trial. Now while the agreement was a voluntary one, yet when it was acted upon by plaintiff, one of the parties thereto, and money was expended by him in carrying out its provisions, he certainly is entitled to enforce its terms against the other parties or any one of them for the purpose of reimbursing himself for all moneys which he has paid out or has contracted to pay out in the performance of his part of the agreement. Orphans’ Home Assn. v. Sharp’s Exr., 6 Mo. App. 150.

The judgment is affirmed.

Reyburn and Goode, JJ., concur.