2 S.W. 476 (Mo. 1886), Sumner v. Rogers

Citation:2 S.W. 476, 90 Mo. 324
Opinion Judge:Sherwood, J.
Party Name:Sumner v. Rogers, Administrator, Appellant
Attorney:Smith P. Galt for appellant. Edmond T. Allen for respondent.
Case Date:December 20, 1886
Court:Supreme Court of Missouri

Page 476

2 S.W. 476 (Mo. 1886)

90 Mo. 324



Rogers, Administrator, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from St. Louis Court of Appeals.


Smith P. Galt for appellant.

(1) There was an utter failure to prove the allegations of fraud, so as to sustain an action for deceit. Dunn v. White, 63 Mo. 181, and cas. cit.; Joliffe v. Collins, 21 Mo. 333. (2) The first count is an action for deceit, and nothing else. It is solely for the "frauds," "fraudulent acts," "conspiring with others with intent to cheat and defraud plaintiff," "fraudulent concealment from plaintiff," "misleading and fraudulently deceiving plaintiff," that plaintiff claimed to be "damaged in the sum of one thousand one hundred dollars." Though there be acts alleged that, if differently pleaded, might constitute an action for money had and received, that counts for nothing in construing the pleading, because there can scarcely be an action for deceit imagined where the fraud might not be eschewed and an action for money had and received maintained. (3) The plaintiff had to stand or fall by his pleadings. He cannot declare on one cause of action and recover on another and different cause of action. Bray's Adm'r v. Seligman's Adm'r, 75 Mo. 40; Smith v. Culligan, 74 Mo. 389; McGonigle v. Dougherty, 71 Mo. 259; Carson v. Cummings, 69 Mo. 325; Clements v. Yeates, 69 Mo. 623; Davis v. Brown, 67 Mo. 314; Eyermann v. Mt. Sinai Cem. Ass'n, 61 Mo. 489; Ensworth v. Barton, 60 Mo. 511; Houston v. Forsythe Scale Works, 56 Mo. 416; Cabanne v. Skinker, 56 Mo. 368; Jones v. Louderman, 39 Mo. 289; Harrison v. Railroad, 37 Mo. 307; Browning v. Walburn, 45 Mo. 477; Dougherty v. Mathews, 35 Mo. 520; Beck v. Ferrara, 19 Mo. 30; Duncan v. Fisher, 18 Mo. 403; Link v. Vaughn, 17 Mo. 585. (4) In the case at bar not only did the pleader draft the first count as an action for deceit, but he expressly declared upon the trial that it was an action for deceit; and in that view of the pleadings, in which the court coincided, much testimony (nine-tenths of all the testimony in the record), otherwise irrelevant and immaterial, was admitted. To permit the plaintiff now to hold that the count was not an action for deceit, the trial court would stultify itself, and hold out a premium to counsel to commit a fraud on the court and opposite party, and there can be no certainty in pleading or practice. (5) It is presumed the pleader knows the statutory provisions concerning pleading. The two counts as pleaded, and construed by the pleader on the trial, were properly joined in the same petition, and the court will not, after judgment, at the instance of the pleader or his new associate, construe the petition so that the one count shall be taken as ex contractu and the other ex delicto, and, therefore, improperly joined. (6) If the first count is construed by this court as an action for money had and received, and it is further held that it should now be so construed, notwithstanding the plaintiff pleaded it, and prosecuted his suit and got in his mass of testimony upon the theory and express declaration that "it is an action for deceit;" nevertheless, there was no evidence upon which he could recover. (7) In no event has the respondent been damaged or his rights affected. He holds the twenty-two thousand dollar note and mortgage securing it; and the thirty-five thousand dollar note and mortgage securing it; and Merrick and Stickney's one-half interest in the land mortgaged is worth from forty thousand to eighty thousand dollars.

Edmond T. Allen for respondent.

(1) Tuck's relation to Sumner was that of a trustee to his cestui que trust. Brandt on Surety, sec. 370; Phares v. Barbour, 40 Ill. 375; Rogers v. Trustees of Schools, 46 Ill. 428; Kirkpatrick v. Howk, 80 Ill. 112; Mahan v. Crickett, 2 Swans. 198; Price v. Truesdale, 28 N.J.Eq. 200; Barnes v. Mott, 64 N.Y. 397; City National Bank v. Dudgeon, 65 Ill. 11; Boyd v. McDonough, 39 How. Pr. 389; Baker v. Briggs, 8 Pick. 127; Hayes v. Ward, 4 Johns. Ch. 123. (2) Tuck's release from the lien of his mortgage of Merrick & Stickney's half of the St. Charles county land, released Sumner from any liability, whatever, on the twenty-two thousand dollar note. National Bank v. Douglass, 5 Ga. 205; 2 White & Tudor's Lead. Cas. [4 Ed.] 1874, 1890, and cas. cit.; Rees v....

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