114 Mo. App. 460 | Mo. Ct. App. | 1905
This is an action brought by plaintiff against the defendant to recover damages by reason of its failure to carry out a certain contract en
“First count. For his first cause of action plaintiff says that defendant was at all times hereinafter mentioned and has ever since been a private corporation of the State of Maryland, organized to transact a fidelity and judicial surety business, authorized under the law of said State to become surety upon the bonds of officers and employees of banks, mercantile houses, railroads, express and telegraph companies, officers of states, cities and counties; of contractors-'. . . • and- all other bonds required to be given in court proceedings, and is not authorized to transact such business in this State.
“That on or about November 10, 1896, defendant being desirous to extend its business, proposed in writing to plaintiff that he should accept the general agency for Missouri of said company, to solicit and contract for business in said State. Said proposition was comprised in two letters of said date written to plaintiff by defendant and attached hereto under marks, respectively to exhibits ‘A’ and ‘B. And plaintiff at said time was engaged in lucrative and profitable business in Chicago, Illinois, yielding him an income of $150 per month, and defendant, well knowing plaintiff’s then situation, and the profits of his then business, made said proposition with the intention of establishing a lasting and still more profitable business for plaintiff and itself in the State of Missouri, with headquarters at Kansas City, and defendant thereby intended to and did undertake to comply with the laws of Missouri pertaining to surety and trust companies and qualify for the transaction of such business in the cities and towns of said State, and did undertake to establish a business of that character*463 and agreed to permit plaintiff to retain as Ms profits therein twenty per cent on fidelity bonds and fifteen per cent of the premiums on judicial bonds received by defendant upon business written by plaintiff. And in reliance thereon, and depending for his compensation solely upon the profits aforesaid, plaintiff in writing accepted said proposition, severed his connection with his Chicago employers, came to Kansas City, Missouri, notified defendant that he was ready, able and willing to perform his part of the contract, and to solicit business for and represent defendant in said territory.
“But defendant, utterly disregarding its .duty to plaintiff, failed, neglected and refused to comply with the laws of Missouri in respect to surety and trust companies and to furnish plaintiff permits from said State and municipal officers to authorize him to' transact such business, all of which it had in said proposition agreed to do.
“Plaintiff, on his part, has done each and everything required by said proposition and his acceptance thereof to be done by him and performed.
“Plaintiff remained in defendant’s service from said November 10, 1896, until on or about the first day of April, 1897, at which date defendant revoked said agency and discharged plaintiff. During said period of time from November 10, 1896, until April 1, 1897, the surety and trust company business in the State of Missouri was most profitable, and the profits of. plaintiff’s said agency in the State of Missouri, had defendant performed its contracts, would have been exceedingly great, to-wit: the sum of thirteen hundred dollars, no part of which has been paid although plaintiff has often demanded the same.
“Wherefore, plaintiff says that he has been damaged in the sum of thirteen hundred dollars, for which, with his costs, plaintiff prays judgment.
“Second count. For his second cause of action, pleading now in the alternative, plaintiff says that de*464 fendant was at all the times hereinafter mentioned, and has ever since been, a private corporation of the State of Maryland.
“That frpm November 10, 1896, until April 1, 1897, plaintiff was employed by defendant as general agent for Missouri, and defendant undertook and promised to pay him the reasonable value of his time and services during said period.
“That although plaintiff during said time did all the things required of him to be done by defendant and his said time and services were reasonably worth one hundred and fifty dollars per month, and although plaintiff has frequently demanded of defendant that it should pay him therefor, defendant has always failed and neglected to so pay him, and is now indebted unto plaintiff in the sum of seven hundred dollars, for which, with his costs, he prays judgment.”
Before the trial several amendments were made, but the cause was tried on the amended petition filed April 23, 1902, which contained two counts, the first of which is substantially the same as that contained in the original petition. The second count, after reciting, also, in substance, the contents of the first count, alleged as follows :
“3. Plaintiff remained in defendant’s service from said November 10, 1896, until on or about the 1st day of April, 1897, and plaintiff, by reason of the acts of defendant aforesaid, has lost four and one-third months time of the value of six hundred and fifty dollars and in the performance of his said contract has incurred expense in the sum of fifty dollars; although plaintiff has repeatedly demanded of defendant that it should pay him said sum of seven hundred dollars, no part thereof has ever been paid him and plaintiff now says that he has been damaged in the sum of seven hundred dollars, with interest from the institution of this action, December 26, 1901, at the rate of six per cent per annum and for same with his costs plaintiff prays judgment.”
It is the settled law of the State that in a suit on contract the plaintiff cannot recover on quantum meruit. [Mansur v. Botts, 80 Mo. 651; Williams v. Railroad, 112 Mo. l. c. 491; Moore v. Mfg. Co., 113 Mo. 99; Redman v. Adams, 165 Mo. 60.]
But plaintiff contends that the second count is a declaration on the contract and not action on quantum meruit. The count sets out the contract and alleges performance upon the part of plaintiff. And that while, “in defendant’s service from said November 10, 1896, until on or about the 1st day of April, 1897, and plaintiff by reason of the acts of defendant aforesaid has lost four and one-third months time of the value of $650, and in the performance of his said contract has incurred expenses in the sum of $50,” etc. In Redman v. Adams, supra, it was held that, the plaintiff by setting up the whole history of the transaction between the parties did not make the case one of contract, and it does not necessarily follow that because the plaintiff here set out
If it could be construed that the second count of the amended petition was on quantum meruit it would be amendment of the original petition which would of course be sufficient to defeat application of the five years’ statute of limitations. It follows from the foregoing that the action of the court is affirmed.
