Sumner v. Rogers

• Decision Date: 20 December 1886
• Citation: 2 S.W. 476,90 Mo. 324
• Parties: Sumner v. Rogers, Administrator, Appellant
• Court: Missouri Supreme Court

2 S.W. 476

90 Mo. 324

Sumner v. Rogers, Administrator, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from St. Louis Court of Appeals.

Affirmed.

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. Barrington, 2 Ves. Jr. 540; Polak v. Everett, L. R. 1 Q. B. Div. 669; Willis v. Davis, 3 Minn. 17; Bunney v. Bunney, 29 Iowa 448; 2 Am. Lead. Cas. [5 Ed.] 396 and cas. cit.; Saline County v. Buie, 65 Mo. 63; Dodd v. Winn, 27 Mo. 503; Smith v. Rice, 27 Mo. 505. (3) Sumner having paid Tuck eleven hundred dollars on account of interest, and twenty-two thousand dollars on account of the principal of the twenty-two thousand dollar note, under ignorance of the material fact that the mortgage, as to Merrick & Stickney's half of the land, had been released, has a right of action against Tuck to recover the money so paid. 2 Kent's Com. 491; Moses v. McFarlane, 2 Burr. 1009; 2 Smith's Lead. Cas. 395; Garland v. Salem Bank, 9 Mass. 408; Citizen's Bank v. Graffin, 31 Md. 507; 2 Smith's Lead. Cas. side p. 403, 404, et seq.; Pitman v. Trinity Church, 123 Mass. 1; Welch v. Goodwin, 123 Mass. 71. (4) Negligence of the party making such payment is no defence. Keeley v. Solari, 9 Mees. & W. 64; Columbus Ins. Co. v. Walsh, 18 Mo. 229; Beel v. Gardner, 4 Man. & G. 11; Mather v. Maidstone, 18 C. B. 273; Gurney v. Wormesley, 4 El. & Bl. 133; Koontz v. Central National Bank, 51 Mo. 275. (5) Whether the petition be regarded as stating causes of action for deceit, or causes of action for money had and received (regarding as surplusage any averments of fraud), the plaintiff was entitled to a verdict, as the evidence stood at the end of plaintiff's case. House v. Lowell, 45 Mo. 383; Pickering v. Transp. Co., 47 Mo. 457; Williams v. Fischer, 50 Mo. 198; Ahern v. Collins, 39 Mo. 145; Biddle v. Runney, 52 Mo. 153; Elfrank v. Seiler, 54 Mo. 134; Pomeroy v. Benton, 57 Mo. 531, 550, 555; Daily v. Houston, 58 Mo. 361; Gimbell v. Piquers, 62 Mo. 243; Mead v. Brown, 65 Mo. 552; Sparman v. Kein, 83 N.Y. 245; Whalen v. Sheridan, 17 Blatch. 9. (6) Considering the relation between the parties, viz., that of trustee and cestui que trust, the evidence fully sustained the allegations of fraud. 2 Kent's Com. [12 Ed.] 483, 484; Story's Eq. Jur. [11 Ed.] sec. 215, and note; Bank of the Republic v. Bustee, 31 Vt. 101; Bank v. Albright, 21 Pa. St. 229; Dameron v. Jamison, 4 Mo.App. 299; Baldwin v. Whitcomb, 71 Mo. 65. (7) The pleadings and evidence tended to show, if they did not conclusively establish the fact, that Tuck's deed of release to the Smiths had been recorded before the payments by Sumner to Tuck. Such record, however, was not constructive notice to Sumner of such release, which Tuck can take advantage of in this transaction. Story's Eq. Jur. [11 Ed.] sec. 401; Pinham v. Randolph, 4 How. (Miss.) 435; Young v. Hopkins, 6 Mon. (Ky.) 23; Campbell v. Whittingham, 5 J. J. Marsh. 96; Yonge v. Harris, Adm'r, 2 Ala. 101; Napier v. Elam, 6 Yerg. 108; Kennedy v. Johnson, 2 Bibb. 12; Platt v. Squire, 12 Metc. 494; Babcock v. Case, 61 Pa. St. 429; Foster v. Holbert, 55 Mo. 23; Dameron v. Jamison, 4 Mo.App. 299; Hart v. Giles, 67 Mo. 175. (8) The Kansas mortgages and securities have nothing to do with the count for eleven hundred dollars, and are of importance under the count for twenty-two thousand dollars only as to the measure of damages. (9) On the evidence, plaintiff was entitled to a verdict on the first count for eleven hundred dollars and interest, and on the second count for twenty-two thousand dollars and interest.

OPINION

Sherwood, J.

Both counts in the petition were for causes of action arising ex delicto, and so they were treated by plaintiff's counsel, who insisted on the trial that the action was for deceit; it was upon this ground, alone, that the circuit court permitted the trial to proceed. At the conclusion of the evidence, however, the court gave instructions that on the pleadings and evidence the plaintiff was not entitled to recover on either count, and, thereupon, the plaintiff took a non-suit with leave, etc., and failing to set the non-suit aside, appealed to the St. Louis court of appeals, where the judgment of the lower court was reversed.

The grounds on which this was done were, that there was enough in the first count of the petition to make a good cause of action for money had and received, and that the defendant, by failing to demur on the ground of misjoinder, had waived the objection, and, therefore, was not at liberty to raise such objection at a subsequent period. R. S., sec. 3515. Though our statute has denominated every suit brought under the code, "a civil action" (sec. 3461), yet this provision only relates to the form of the action, not to its substance. This is plainly shown by the provisions of section 3515, supra, which allows a demurrer, because of several causes of action having been improperly united, and by section 3519, allowing advantage to be taken of such defect by answer, when the same does not appear on the face of the petition, and cannot, therefore, be taken by demurrer; and, furthermore, by section 3512, which prescribes what causes of action may be united in the same petition, ex gr., contract express or implied; or injuries with or without force, etc., etc., and specially providing that "such causes of action so united must all belong to one of these classes." These statutory provisions leave no room to doubt that the old common law distinctions between actions ex contractu and ex delicto, are still, in substance, retained by the code; for otherwise the provisions quoted would be devoid of meaning.

Notwithstanding the code, a party cannot sue on one cause...