Union Loan, Storage & Mercantile Co. v. Farbstein

148 Mo. App. 216 | Mo. Ct. App. | 1910

REYNOLDS, P. J.

(after stating, the facts). — The points relied on in the brief of counsel for appellant are: First, that the merits of the plaintiff’s case are not proper subjects of inquiry on a plea in abatement, and the plea in abatement must be determined before the other issues are tried; second, that the court erred in admitting any evidence under the first count of respondent’s petition, because the first count does not state a cause of action in that it fails to state that the defendant promised to pay, and that such allegation was necessary to constitute good pleading; third, that the court erred in failing to sustain the demurrer interposed by appellant at the close of plaintiff’s case in chief, as the evidence showed that respondent had split its account against appellant; fourth, that a corporation and an individual cannot become partners and operate a partnership business; fifth, that the instructions given at the instance of respondent should have been refused because under said instructions respondent was not compelled to prove the demand of payment and refusal; sixth, defendant’s instructions on the issue as to whether plaintiff had split its account and the instruction to the effect that a corporation could not engage in a partnership business were improperly refused.

Taking up these assignments in their order, it is sufficient to say that what is called a “plea in abatement” and which was filed with the justice of the peace, had no place here. All the matters set up in that were in the answer and properly so, for considering the averments in this so-called plea in abatement as most favorable to defendant, they, in law, amount to nothing more than a denial of indebtedness of the defendant to plaintiff, and the issue tendered by this so-called plea in abatement contained in the answer was nothing more than could have been given in under the general denial and did not require or justify a separate trial from the trial of the merits. It may also be said that this-denial of any dealing with the plaintiff and averment that all the dealings were with Mr. Gallant, are hardly consistent with the parts of the answer which set up counterclaims in favor of defendant and against the plaintiff. Consistency is very important when one appeals to a court for relief.

As to the second proposition that it was error to admit any testimony under the first count because it did not state that appellant had promised to pay, a complete answer to that is contained in the decision of this court in the case of Lustig v. Cohen, 44 Mo. App. 271, where Judge Rombauer, speaking for this court, and referring to the case of Newberger v. Friede, 28 Mo. App. 631, and May v. Kloss, 44 Mo. 300, says that while it is necessary in an action in the circuit court to state in the petition, when declaring on a stated account, that the defendant promised to pay the balance as found to be due, that this rule does not apply in actions brought before a justice of the peace where formal pleadings are not required.

As to the third proposition, that the court erred in not sustaining appellant’s demurrer because the evidence shows that respondent had split its account against appellant, it is sufficient to say that there is no evidence to justify any such instruction. There was no proof of any splitting up of a single cause of action, within the meaning of the rule which forbids that. According to the defendant’s own testimony, the transactions between him and plaintiff were entirely separate and distinct. They were divisible; each demand or transaction was subject to a distinct and separate action. [Flaherty’s Admr. v. Taylor, 35 Mo. 447; Alkire Grocer Co. v. Tagart, 60 Mo. App. 389.] As to the remaining points covering alleged errors in refusing instructions, it is sufficient to say that they were properly refused. They either did not state the law correctly, or were covered by those given, or Avere not supported by evidence in the case.. Nor is there any error in the action of the court in the instructions AVhich it gave at the instance of the plaintiff. They stated the law in a very concise and absolutely correct form as applicable to the facts in this case. Plaintiff’s counsel urge that the exceptions noted in the bill of exceptions before us, to the giving and refusal of instructions, are not properly in that bill. While it is true that exception must always be saved at the time when the error complained of is committed, it is to be borne in mind that this rule is more immediately for the protection of the trial court. The learned trial judge in this case, in overruling the motion to strike out these exceptions, announced that it was the well understood rule of his court that counsel were assumed to have excepted to the ruling of the court in the giving and refusal of instructions. This was a matter ordinarily so entirely within the discretionary power and control of the trial judge that when following that custom he has allowed the exceptions and embodied them in th.e bill which he has signed, this court will not interfere with or comment on that action in any way, further than to say that it was entirely within his power to do so. As presented in the bill of exceptions here before us, it is tantamount to a finding by the learned trial judge that he allowed exceptions and that they had been duly preserved.

We are not deciding that if the bill of exceptions fails to note exceptions to rulings or acts at the trial or in the progress of the cause, we will allow it to be corrected here by showing that the rules of court assumed that exceptions had been taken to all adverse rulings. We are placing this decision on the facts here in the record, and on no other supposable case.

We are asked to inflict the statutory penalty for a vexatious appeal in this case. While we have disposed of the points made by the learned counsel for the appellant in rather a summary manner, we have done so because we think they are traveling over ground, the law of which is fairly well defined, as covering the points that they have made. Evidently the appeal in this case was taken in absolute good faith and the points made are well argued. It does not present a case calling for the infliction of the statutory penalty for vexatious appeal. The judgment of the circuit court is affirmed.

All concur.