148 Mo. App. 725 | Mo. Ct. App. | 1910
(after stating the facts)’.— While we have been favored in this case by an exceedingly elaborate and carefully prepared brief and argument on the part of the learned counsel for the appellant, the case is really within a very narrow compass. Whether the reference in this case was made in accordance with section 697, Revised Statutes 1899, by consent of the parties, is not clear. While there is no evidence of a written consent, it does appear that the parties appeared and agreed upon a referee and -the
The errors assigned by the learned counsel, both by exception and by motion for new trial, save what is claimed to be an error of law to be hereafter referred to, are to errors of the referee in his finding on facts. No errors are here assigned on the admission or rejection of evidence. Included in the finding of the referee is a very important and material one, that there was no contract covering the whole construction, and no contract whatever between plaintiff and defendant Henry W. Beck or Chas. J. Beck as his agent, as to the price to be charged for the material furnished and work and labor performed. If that finding is supported by the testimony, and it being against the existence of a contract for the price, it strikes at the very foundation of one of the claims of plaintiff, namely, the claim of error as to a limited contract price.
We have read all of the evidence in the case. Reading that evidence, wTe find it flatly and irreconcilably contradictory on all matters in controversy. If we are to weigh it we are confronted with a situation in which we are at a great disadvantage. We did not have the witnesses before us. The referee had. He was selected by the parties. His report has been confirmed by a very
Defendant insists that the action is on a joint contract, a contract entered into by plaintiff with H. W. Beck and O. J. Beck jointly. The action as set out in the original petition is not on an express contract but on quantum meruit for the services and quantum valehat for the material furnished. It is an action in assumpsit, as it would be called if we preserved the common law forms of actions. Distinctively it is not an action upon an express contract. Whether this contract as set out in the original petition was a joint or several contract is not stated in that petition. Nor do we hold that it was necessary to use the word “joint,” in declaring on a contract, whether express or implied. We will return to this question, as affecting plaintiff’s right to dismiss as to one of the defendants, later. Assuming that an express contract had been proven which covered not only the details of the work and labor to be done and performed and material to be furnished, but also the price to be paid for these, plaintiff had a clear right to abandon this contract and sue in assumpsit, and if an express contract had been proven, notwithstanding the suit was not on it but on a quantum meruit or quantum valehat, the measure of the recovery by plaintiff would be the amount stated in the contract. The rule applicable to cases of that kind is well and accurately stated by Judge Nortoni, speaking for this court, in the case of Cozad v. Elam, 115 Mo. App. 136, 91 S. W. 434. Furthermore, it is the settled law of this State that where a party sues on a special contract he must recover upon that or not recover at all in that action; that having elected to stand upon a special contract he cannot recover for money had and received to his use or upon a quantum meruit for work and labor done or services rendered. [Cole v. Armour, 154 Mo. 333, 1. c. 350, 55 S. W. 476.] This is settled by an unbroken line of authority. The converse of this proposition is,
We find no error in the rulings of the referee on the exclusion or admission of testimony. There is substantial evidence to support all of his findings and we are therefore without good cause to disturb his finding or the action of the circuit court in overruling exceptions to the report, unless there be some merit in the contention, which is so earnestly made and elaborately and learnedly argued by the counsel for the defendant, that plaintiff having sued both defendants, cannot after-wards dismiss as to one and recover as against the other, and hence that it was error to have allowed plaintiff to amend his petition on June 29, 1908, so as to sue in implied assumpsit against H. W. Beck alone, instead of H. W. and C. J. Beck, who were the original defendants. H. W. Beck excepted to this amendment, which was made after the evidence had been taken and the report of the referee filed, in order to conform the petition to the evidence. The two defendants originally sued had stated in their answers that C. J. Bteck was but the agent of H. W. Beck, and H, W. Beck was the man who
We find nothing to support this or on this proposition in Am. and Eng. Ency. PI. and Pr., in vol. 1, p. 586, and have not been able to find anything in Pattison’s Code Pleadings, except a reference to Slaughter v. Davenport. What that case decided was that where there had been a promise to pay three persons jointly, one of them could not maintain an action on the promise but the action must be in the name of the three promisees. Regarding the Slaughter case it is to be observed that it was begun in a justice’s court in the name of the three promisees and after appeal to the circuit court, the statement was amended by striking out the names of two promisees, leaving the action in the name of one only. The Supreme Court held it rightly brought in the first place and the amendment bad. A joint promise to two cannot be sued on by one, for the judgment would not be a good defense against an action by the other promisee. But what the court was considering in the Slaughter case was the statute regarding amendments of appeals from justices of the peace; and what was decided was that the amendment was a change of the cause of action within the sense of that statute; in other words the case stated by the amendment was not
■ It is true the petition does not allege a joint assumpsit, but it does allege the labor and materials were furnished at the instance and request of the defendants; that is, both of them, and for their use and benefit. That this may be a joint assumpsit is shown in the cases reviewed by appellant’s counsel in the motion for rehearing.
In Crews v. Lackland, 67 Mo. 619, Judge Sherwood, commenting on an instruction which .set out that the defendants were sued as partners and that the bur-then of proof on this point is upon the plaintiff and that unless the jury are satisfied from the evidence in the case that at the time of the alleged making of the alleged contract, the defendants were partners, then the verdict must be for the defendants, said that at common law it is clear that this instruction should have been given but that our statute, referring to what is now section 624, Revised Statutes 1899, had altered the rule of the common law and that the section is applicable to suits against partners as well as to suits in which there were more than one defendant.
“It is difficult to see,” in this case, as was said by our Supreme Court in the Slaughter case, and as was done in Rider v. Kirk, 82 Mo. App. 120, the case having been dismissed as against Chas. J. Beck before final submission and before the report of the referee
It appears very clearly by the evidence in the case, that Chas. J. Beck was the party with whom all the transactions connected with the building of this barn were had. ■ It is probably true that plaintiff knew that the barn was to be erected on a farm owned by Henry W. Beck. It is true that what is claimed to have been the bid or proposal of plaintiff for doing the work is in the name of H. W. Beck. Notwithstanding this, there Avas nothing to indicate that Chas. J. Beck, who was living upon the farm alone — that is Henry W. Beck does not appear to have lived there — might not have been erecting the barn for his own use and was to pay for it. It might have been, from anything that appears in the testimony, that Chas. J. B’eck was the agent of an undisclosed principal, or it might have been that he was acting for himself or with his father in the erection of a barn on his father’s farm. The evidence tends to convey the impression that this barn was to be used for the sheltering of stock which that same evidence seems to indicate it was being raised by Chas. J. Beck, and was his own property. The bargaining was with Charles alone, and the father does not, save in name, appear in the transaction at all. He does not appear to have been on^the premises or looked after the construction even when his son was laid up with a broken limb and unable to leave the house. Under these circumstances it would be a harsh rule to say that because plaintiff proceeded against both the principal and the agent, that when he discovered that the facts set out in the answer and as developed at the trial were that Chas. J. Beck was the mere agent of his father, Henry W. Beck, in the erection of this barn, and that fact was discovered before final judgment in the case, that the plaintiff should not be allowed to dismiss as to the agent and go out of court When conforming to the proof in the case, he dismissed
Under the Statute of Jeofails, Revised Statutes 1899, section 657, it was entirely competent for the court on the coming in of the report of the referee and before final judgment and in furtherance of justice, to allow the dismissal and the amendment, all done to conform the pleadings to the facts proven.
The point is made, that in dismissing as to Chas. J. Beck, the court lost jurisdiction against Henry W. Beck by reason of his being a resident of the city of St. Louis and not of St. Louis county, service in the county having been had on Chas.- J. Beck alone, Henry W. Beck having been served outside of the county. This objection is disposed of by the statement, that no such point was made in the lower court. Henry W. Beck appeared and answered to the merits. Without any objection so far as appears by the record in the case, after the dismissal of the cause as against Chas. J. Beck, Henry W. Beck pleaded, appeared and made motions going to the merits and participated in the trial of the cause without suggestion of lack of jurisdiction of the court over his person. If that jurisdiction was lacking originally, as it was merely to the person and was a personal privilege of the defendant, Henry W. Beck, he waived it by his action and by his failure to raise it in apt time. This is so fully covered by the decision of the Kansas City Court of Appeals in Rider v. Kirk, supra, a case in this particular feature almost parallel to the case at bar, that it is unnecessary to dwell on it.
Finding no error in the record of proceedings to the real prejudice of the defendant, the judgment of the circuit court is affirmed.