Kansas City Hotel Co. v. Sauer

65 Mo. 279 | Mo. | 1877

Sherwood, C. J.

Action on bond given by defendant to plaintiff, conditioned that former would save latter harmless from any claim or demand against plaintiff or its hotel property, by reason of any liability incurred by, or through four several mechanics’ liens, defend all suits that might he pending or thereafter brought by the claimants under such liens, pay off, discharge and satisfy any and all such judgment, which might be recovered by such claimants against the plaintiff or its hotel property, and release said property therefrom before the same was advertised, or the plaintiff or any member of its company -was annoyed by any execution, &e. The petition alleged, that the claims covenanted against ripened into judgments enforcing the liens against the hotel property ; that, defendant failing to pay the judgments, the property was sold, and plaintiff, for the protection of its property, had to pay off the executions issued on such judgments, as well as costs, whereby it was damaged, &c. There were three counts in the petition, and Jive breaches in the first count. The substance of the four breaches has just been stated. The fifth breach related to expenses, attorneys’ fees- and costs accrued in consequence of the sale to Borgstede, which compelled plaintiff to pay $500 in proceedings by motions, &c., to set such sale aside, whereby plaintiff was damaged $1,000. It is immaterial to notice the second count, as the finding thereon was for the defendant. The third count was for joists which defendant failed to furnish. The answer contained several defenses : "a dissolution of the corporation at time of action brought, and, after the bond was executed, the nullity of the judgments, executions, sales, etc. The finding of the court was for plaintiff on all the breaches in the first count; on the fifth one in that count in the sum of $500, the undenied allegation as to the amount paid out for attorneys’ fees, &c., being taken as confessed. There was a finding for plaintiffs on the third count also.

i answer-admismeasureeVofaam*ses-

I. We regard as correct the action of the lower court in holding the allegation of the payment of the $500 as confessed, and we have been unable to.see why an allegation of the payment of this sort should not, in the absence of denial, stand admitted as well as any other allegation of payment. Thus, if a surety in a promissory note should be compelled to pay $500 for his principal, and should, in an action for its recovery, allege the payment as a fact, this allegation, if undenied, must result in a judgment in the surety’s behalf. It would be extremély difficult to distinguish that case from the one in hand in point of principle, or show why the allegation of payment remaining in the hypothetical case un denied, should be taken as true, while in the real one a similar allegation, likewise undenied, should, unless established by proof, be taken as false. “We see no sound reason in such an attempted distinction. No doubt, there are many cases where allegations of value, amount of damages, &c., are immaterial and need no denial. But the allegation before us is that of a specific and material fact, which becomes none the less specific and.material because no denial thereof be interposed. Very often, as well under the code as at the common law,'the pleadings may be so shaped as to render that material which otherwise would not be so. This we regard as having been done in the present instance. The point now being discussed finds illustration in the case of Marshall v. Thames Fire Ins. Co. (43 Mo. 586). There, in order to a recovery, it need not to have been alleged that the steamer Magnolia was worth “ more than all the insurance thereon,” but this allegation, not being denied, was held admitted.

2. dissolved cor-B°t^eo0faiis.slJIT

II. The pertinency of the citations relative to the plea nul tiel corporation, we are not able to see. The answer, by alleging the dissolution of the corporation after the date of the bond or agreement declared on, necessarily admitted the fact of the corporate organization and existence at the execution of the contract declared on. If, since that time, the corporation had become unincorporate, the only effect thereof, under our statutes (Wag. Stat. 293, Sec. 21), so far as concerns the present action, would be, that suit would have to be brought by those who weré its officers at the time of dissolution, as trustees of the corporation. But failing to sue in that way, can have worked the defendant no hurt, even if the corporation were really dissolved as averred, and therefore constitutes no ground for reversal. And if there were any formal defect in this particular, our statute of jeofails (2 Wag. Stat. pp. 1084 et seq., sections 6, 19 and 20) would doubtless both suggest and supply a ready remedy.

d , „ mT™. 3. corporation: dissolution of.

ITT: The sale, however, of the hotel property by plaintiff would not per se accomplish its dissolution (Hill v. Fogg, 41 Mo. 563), nor would a dissolution of corporate existence be implied by mere cessation of active business. (State Nat. Bank v. Robidoux; 57 Mo. 446.)

4. mechanics’lien ÍMNESTBtni,raNCÍ

IV. The judgments and sales thereunder in the four mechanics’ lien cases, covenanted against in the bond sued, were neither nullities nor void. It may be conceded that this description: “ The following described real estate, to-wit, the Nelson House Building, situated on lots 27 and 30, and 40 feet off the south side of lot 26,” &c., contained in all the proceedings for the enforcement of the liens from inception to termination, would not bind the lots mentioned. But those proceedings were not necessarily void. The hotel building was still bound, for under the chapter respecting mechanics’ liens (section 3, p. 908, 2 Wag. Stat.), the lien may be enforced against the building alone, and the purchaser thereof at execution sale have reasonable time for its removal. And this right of enforcement against and removal of the building is not confined to leasehold property. The case of Bridwell v. Clark (39 Mo. 170), is based on the lien law applicable to St. Louis county alone, (Sess. acts 1856-7, p. 668,) and does not perhaps, when rightly considered, militate against the views just enunciated ; and if it did, we regard our own exposition of the statute under discussion as the correct one. As the liens and the judgments, &c., enforcing them, were valid, so far as respects the hotel building, the conditions of the bond were obviously broken when the sale of the property occurred. The plaintiff assuredly was not saved harmless.

5r indemnifying dama¿esfaattorney’s fees.

V. The only remaining inquiry is that relative to the plaintiff’s measure of damages. In the case of the State use> Íc- v Beldsmeier, (56 Mo. 226,) the bond was conditioned to prosecute the action «without delay and with effect * * * * and pay all damages that might accrue to any defendant or garnishee by reason of the attachment, or any process or proceeding in the suit, or by reason of any judgment or process thereon ” ; and we held the defendant entitled to recover for any direct loss, damage or expense produced or occasioned “by reason of the attachment or any process or proceeding in the suit, or by reason of any judgment or process thereon,” and that such language was sufficiently comprehensive to include damages arising from expenses incurred in traveling to the place of trial, hotel bills, taking depositions, executing indemnity bond in order to obtain possession of money attached, attorneys’ fees in defending action, and also for the loss of time in attending trial; all these being regarded as direct consequences and losses attendant on and incident to the unsuccessful attachment proceedings, which resulted in a breach of the conditions of the bond. The same principle as to the measure of damages finds enunciation in Kirkpatrick v. Downing, (58 Mo. 32,) and in Lewis v. Atlas Life Ins. Co., (61 Mo. 534,) and elsewhere. The defendant’s liability is measured by a sum sufficient to put the plaintiff in as good plight as if defendant bad kept his covenant. Thayer v. Clemmence, (22 Pick. 490.) In’general the law will give a remedy commensurate with the injury sustained. Rockwood v. Allen, (7 Mass. 254.) The declarations of law given, were in the main correct, and for the most part in conformity to the views herein expressed. Discovering no substantial error in the record, we affirm the judgment.

All concur, except Houan, J., not sitting.

Arrirmed.