21 Mo. App. 551 | Mo. Ct. App. | 1886
— Plaintiff is assignee of the Jefferson City Agricultural Works, and, as such, sued defendants intestate, S. L. Fischer, for unpaid subscription to the stock of said corporation.
The assignment was originally to plaintiff and one
There was a demurrer to the petition, which was sustained, the judgment afterwards being reversed by the-supreme court. 75 Mo. 498.
On trial the plaintiff below prevailed and defendant prosecutes this appeal. Defendant first maintains that there is no sufficient evidence to sustain the finding' below, and for that reason her demurrer at close of plaintiff ’ s case should have been sustained. I do not deem it necessary to go into a full detail of the evidence as presented. Defendant admits that Fischer did subscribe-for thirty shares of the capital stock, but denies that he subscribed for fifty, as contended by plaintiff. He is-charged up with fifty shares on the books of the corporation in the stock account and is credited with the various-' sums on account of such subscription. He was a director of the corporation and a part of the time its president, attending regularly the directors’ meetings. There-is no evidence showing directly that he ever saw the charge of fifty shares, but he had access to the books all the time and control of them a portion of the time.
He answered the call of thirty per cent, of the stock subscribed by paying in $1500 which is just thirty per cent, of fifty shares. Besides, full payment of thirty shares would be $3000, whereas he appears credited with $3375. These are some of the prominent facts in the case which go to sustain the finding below. In the light of the evidence in behalf of the plaintiff we cannot say the finding is the result of prejudice or a wanton disregard of the rights of defendant, and yet, under our own and the supreme court’s repeated rulings, we would be compelled to so hold, in order to -disturb the verdict on account of this complaint urged against it.
During the course of the trial the court permitted
It is next urged that there is no proof of defendant being administratrix, or that the cause was ever revived in her name as such. She does, however, answer as administratrix and voluntarily appears to ask and obtain leave for that purpose. Her answer is an admission of her representative capacity and the fact of her so answering and proceeding into the trial of the cause, the record, after her appearance, running in her name, we hold to be sufficient, though no specific order of revival appears.
It is further insisted that White is shown to have been appointed with plaintiff as assignee and that he entered upon his duties as such, and, therefore, should be a co-plaintiff. For some reason, not appearing in the abstracts of the record as prepared by counsel, White did not give bond and abandoned all claim or pretense to the rights or duties of an assignee.
The petition alleges that he failed and refused' to qualify and thereby plaintiff alone brought the action; so stating it was not demurrable. 75 Mo. 498. The point could not be made otherwise than by answer and defendant contends she has so raised it by the following which is the only reference thereto in her answer, viz.: “Defendant further says that the plaintiff herein has no authority to institute or maintain this proceeding against her.”
That the point can only be made by answer, when the petition is sufficient on its face, is definitely settled.
Is the above quotation sufficient? In the case of Maxwell v. Pratt (24 Hun, 448), the following allegation in the answer was held not to be sufficiently specific, “that there is a defect of the parties plaintiff, and that
On trial of the case referred to, “at the opening of the case the defendant moved for a non-suit, on the ground that the owners of the other two-thirds had not been made parties to the suit. It appeared that the defendant knew the names of the owners of the other two-thirds of the factory, and that they were living at the commencing of the suit.” On this branch of the case the court say, that “the statement in the answer is not effectual as a plea in abatement. Dilatory defences, such as a plea in abatement, are not favored, but are to be strictly construed; and such plea must give the plaintiff a better writ; it must state precisely who should be made parties.” Brumfield v. Boutall, 2 Abb. Pr. 351, sustains the same rule.
Pomeroy’s R. & R. Rights says, “ if the defect does not appear upon the face of the complaint or petition, the defendant must set up the defence specially in his answer, or, failing in this, he waives the objection. Section 207. It would appear to be clear from these citations that defendant did not raise the question by her answer and must be held to have waived it.
The remaining objection urged here is as to the allowance of interest from the filing of the petition in the cause. The institution of the suit would be a sufficient demand and interest should run at the legal rate on an unpaid and over due stock subscription from demand, as on any other claim, but the difficulty with plaintiff is that his petition does not claim or ask interest, directly or indirectly. I am not advised of any authority sustaining the allowance of interest on a mere account when the plaintiff has not stated it in his petition nor included it in his prayer. For the error in allowing interest we would reverse the judgment and remand the cause, but plaintiff now files in this court a remittitur for the interest, and we, therefore, affirm the judgment less the interest up to the date thereof.
The costs of this appeal are adjudged against the plaintiff.