Silcox & Martin v. McKinney

64 Mo. App. 330 | Mo. Ct. App. | 1896

Smith, P. J.

It has for a long time been the settled rule of practice in this state, that where a petition sets up separate causes of action, stated in separate counts, with, a separate demand for damages in each count, a general verdict for a general sum is improper and is a good cause for arresting the judgment. Chorn v. Railroad, 55 Mo. App. 163; Mooney v. Kennett, 19 Mo. 551; Clark’s Administrator v. Railroad, 36 Mo. 215; Pitt v. Fugate, 41 Mo. 405; Collins v. Dulle, 45 Mo. 269; Bigelow v. Railroad, 48 Mo. 510; Owens v. Railroad, 58 Mo. 386; Bricker v. Railroad, 83 Mo. 391. But this rule does not apply where there is really but one cause of action, stated in a different manner in different counts, so as to meet any possible state of facts that may be shown by the evidence. In such case, a finding upon any one of the counts would be a bar to any further recovery on any count in the petition, and a general verdict for plaintiff would be sufficient. Owens v. Railroad, ante; Brownell v. Railroad, 47 Mo. 239.

The appealing defendant in the present case, against whom there was a judgment given in the court below, contends that there are two counts and causes of action set forth in the plaintiffs’ petition, and since the finding of the jury was general and not on each separate count, defendant’s motion in arrest of the judgment should have been sustained.

By reference to the petition it will be seen that in the first count thereof it is alleged that on the twenty-sixth of March, 1892, the plaintiffs shipped to defendant one hundred and twenty barrels of onions, which were sold by defendant for $570, and that on the tenth day of April, 1892, the plaintiffs shipped to the defendant nineteen barrels of parsnips, thirty barrels. of onions, seventy-five barrels of onions, and thirteen thousand and thirty pounds of onions in bulk, which where sold by defendant for $550. It was further alleged that the defendant paid out on account of freight and drayage a certain sum on éach shipment, and that he was entitled to five per cent commission on account of said sales. And there is the further allegation that defendant, on each of the two dates named, paid plaintiffs the sum of $200.

The second count alleges that on the same dates stated in the first count, the plaintiffs shipped the defendant the quantities of produce described in the first count (excepting that in the latter there is mentioned thirty bushels of onions, not mentioned in the first), of a certain market value in Kansas City, being the same as that which it was alleged in the first count said produce was sold for. It was further alleged that the defendant had sold said produce and had not accounted to the plaintiffs therefor. The other allegations as to amounts and dates of advancements for freight and drayage, and as to commissions, were identical with those of the first count.

While it is true there is the item of “thirty bushels of onions” mentioned in the second count, that is not in the first, still a close analysis of the two counts will lead to no other conclusion than that the petition states but one cause for action, though stated in a different manner in each count. The allegations as to the number and date of the shipments, the kind, quantities, and value of the produce, the amount of advancements, commissions, and payments, with the single exception already mentioned, are the same in each count of the petition. No inference arises from a reading of the two counts that the shipment of the produce described in the one is distinct from that of the other. It is too plain for argument that the transactions referred to in the first count are the same as those in the second, though somewhat differently stated.

In determining whether the petition is within the first or second branch of the rule stated at the outset, the several facts just adverted to, showing the cause of action to be one and the same, ought to greatly outweigh the single fact, also already adverted to, showing that the petition states two separate causes of action. We think it clear from the very language of the two counts that the pleader intended to state but a single cause of action and that the item of thirty bushels of onions, mentioned in the latter and not in the former, was but a clerical error. The rule is that in construing a pleading its language must be taken in a plain and ordinary meaning, and such interpretation given to it as fairly appears to have been intended by the pleader. Stillwell v. Ham, 97 Mo. 579; R. S., sec. 3546. Tested by this rule, it is plain that the petition stated but one cause of action and that the general finding thereon for the plaintiffs was sufficient. It follows that the circuit court did not err in overruling the defendant’s motion in arrest.

The judgment will be affirmed.

All concur.