5 Mo. App. 51 | Mo. Ct. App. | 1878
delivered the opinion of the court.
The petition of plaintiff, after setting forth that defendant is a corporation under the laws of Maine, engaged in the insurance business, and having authority to carry on its business throughout the Union; that it had an office and agents in the city of St. Louis; and that, on April 1, 1874, defendant employed plaintiff to work for it in Kansas, in securing applications for insurance, — proceeds in the following words : “ Defendant employed plaintiff for the term of one year, from and after the said first day of April, 1874, and agreed to pay plaintiff, for his services as aforesaid, the sums of one hundred and fifty dollars per month, and the amount of his expenses during said year; that plaintiff
On the trial, defendant objected to the introduction of any testimony, on the ground that no cause of action was stated in the petition. Plaintiff introduced testimony tending to show that at the date alleged, whilst residing in Kansas, he made a contract with Chapman, the general agent of defendant, to work for defendant for one year in Kansas, as its general agent in that State, at $150 a month and his expenses ; that he worked thus, under the contract, for two months, and secured certain applications for the company, which he sent to the general agent in St. Louis,
Defendant then introduced evidence tending to show who were the officers and agents of defendant; where they were situated, and their respective duties; also the charter of defendant, and its written appointment of Chapman as general agent of defendant for Missouri and part of Illinois.
Instructions were asked and given on either side, and some instructions asked by defendant were refused. It is not necessary, for the purposes of this opinion, to set them out. There was a verdict and judgment for plaintiff for $1,900. A motion in arrest of judgment, and a motion for a new trial, were overruled; and defendant appeals.
We are of opinion that the motion in arrest of judgment should have been sustained. Whether defendant demurs or not, he may, by motion in arrest or otherwise, show that the petition does not set forth facts sufficient to constitute a cause of action. This is not a defect of form at all; and it is not cured by verdict. Where the pleader omits the explicit statement of some fact essentially necessary to be proved, but as to which it is manifest that it must have been proved on the trial, or no jury could have found and no court received the verdict, the want of stating this material fact in express terms, if the petition contains allegations sufficiently general to comprehend it in fair and reasonable intendment, will not necessarily be fatal after
The petition in the present case shows that plaintiff did not perform the alleged contract on his part. The contract was for twelve months, and plaintiff says he worked for a part of that time, and was ready and willing to work during the remaining period of his term of service, and that defendant failed to carry out the conditions of the contract on its part; but the only failure specifically alleged is a failure to pay plaintiff his salary. This simple breach of
We do not conceive it to be our duty to pass upon the other questions arising upon the record, and to which our attention is called by counsel. We cannot know that they will arise upon a second trial of the case.
The judgment is reversed and the cause remanded.