177 Mo. App. 494 | Mo. Ct. App. | 1913
TMs is a suit upon a contractor’s bond for the erection of a schoolhouse in Valley Park School District No. 5, township 44, range 5 east, of St. Lords county, Missouri. The bond is executed to the State of Missouri by the defendant, George S. McClinton, as principal, and his codefendant, United Surety Company, as surety, and is conditioned that defendant McClinton shall faithfully perform his contract for the erection of such building, “and shall as soon as the work contemplated by said contract is completed, pay to the proper parties all amounts due for material and labor used and employed in the performance thereof.” And the bond provides that “the same may be sued on at the instance of any material man, laboring man or mechanic.”
The suit was originally instituted in the name of the said Valley Park School District, at the relation of the respondent, Pickel Stone Company. A demurrer was sustained to the petition upon the ground of lack of capacity of the school district to maintain the action on the bond. Thereupon plaintiff amended its petition by dropping the name of the school district in the caption thereof, as well as the allegation in the body thereof to the effect that the suit was brought to the use and at the relation of respondent Pickel Stone Company; though the word “relator” remains in places in the petition instead of the word “plaintiff.”
Thereupon the defendant filed its answer to the amended petition, admitting the execution of the contract for the construction of the school building, as well as the execution of the bond sued upon, and denied generally the other allegations of the petition as amended.
Appellant urgently insists that it was error for the trial court to permit the petition to be amended so as to substitute the respondent as plaintiff in lieu of the school district, in whose name the cause was instituted at the relation and for the use of the respondent. Appellant says that, as the suit was originally begun, one beneficiary under the bond, not itself the obligee, attempted to maintain the action for the benefit of another beneficiary, and that when the school district went out on demurrer because its lack of capacity to sue appeared upon the face of the petition, the respondent could not step in and volunteer itself as a substituted plaintiff.
In support of the appellant’s contention in this regard we are cited to early cases of our courts which appear to sustain its position. It serves no useful purpose to review them, however, as the later cases support the action of the trial court in permitting the amendment in question.
Section 1848, Revised Statutes 1909, is as follows :
‘ ‘ The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, return or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of the party, or a mistake in any other respect or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”
However, in Hackett v. Van Frank, 119 Mo. App. 648, 96 S. W. 247, this court through G-oode, J., held that where a cause of action was begun in the name of all the stockholders of a corporation as partners, the petition might' be amended, on discovery of the mistake, to make the corporation plaintiff; following Lilly v. Tobine, 103 Mo. 477, 15 S. W. 618, and citing a number of other cases in this State.
In Commission Co. v. Milling Co., 136 Mo. App. l. c. 368, 369, 116 S. W. 1112, it is shown that there are two lines of cases on the question, but that the more recent decisions hold that under the statute an amendment can be made which will substitute even an entire new party or parties plaintiff. [See, also, Merriman v. Springfield, 142 Mo. App. 506, 127 S. W. 122.]
In the case before us, the respondent was a party to the record from the beginning, and the suit' was sought to be prosecuted for its use and benefit; the school district being the nominal plaintiff. The effect of the amendment was to permit the suit to proceed in the name of the real party in interest, to-wit, this respondent, when it appeared that the nominal plaintiff had no standing in court. We think that this was not error.
A further reason why the appellant should not now be heard to complain of the action of the trial court in permitting the amendment in question is that appellant did not object or complain at the time, but on the contrary filed its answer and went to trial on the merits. By pleading over we think that the appel
It is urged that the action should be prosecuted in the name of the State for the use and benefit of this respondent, and that the latter cannot maintain an action on the bond in its own name. In this we think appellant is in error. [See Devers v. Howard, 144 Mo. 671, 46 S. W. 625; Glencoe Lime & Cement Co. v. Wind, 86 Mo. App. 163; Buffalo Forge Co. v. Mfg. Co., 105 Mo. App. 484, 79 S. W. 1024.]
A further contention of appellant is that, because of the fact that the amended petition omitted certain words contained in the original petition, the amendment amounted to a total change in the cause of action. The words thus omitted referred to the giving of the bond, stating that the same was executed “in accordance with the statute in such cases made and provided.” And appellants point is that the omission of these words made the action one as for the enforcement of a common law bond, whereas the original petition counted upon a statutory bond. As to this we need only say that even, though the amended petition entirely changed the cause of action, the defendant by pleading over waived it, and the matter is not before us for review. [See Forrister v. Sullivan, 231 Mo. 352, 132 S. W. 722; Phillips v. Barnes, 105 Mo. App. 421, 80 S. W. 43; Grymes v. Mill & Lumber Co., 111 Mo. App. 358, 85 S. W. 946.]
It is further urged that the amended petition wholly failed to state a cause of action. We have carefully examined it, and while it does not allege the facts relied upon with great exactness and nicety, it does, taken as a whole, at least by reasonable inference and intendment, state a cause of action; and this being so, no advantage can be taken of its imperfections after verdict.
And lastly, it is insisted that plaintiff’s proof-totally failed to establish a breach of the condition of
The judgment should he affirmed. It is so ordered.
