Shaffner v. LeAhy

• Citation: 21 Mo.App. 110
• Parties: L. H. SHAFFNER, Respondent, v. M. A. LEAHY, Appellant.
• Decision Date: 23 February 1886
• Court: Court of Appeal of Missouri (US)

21 Mo.App. 110

L. H. SHAFFNER, Respondent,

v.M. A. LEAHY, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1886.

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Affirmed.

EDMOND A. B. GARESCHE, for the appellant: If we be correct in our interpretation of the legal effect of the allegations contained in the plaintiff's complaint, as originally framed, and as subsequently amended, the circuit court had no jurisdiction of the cause of action as originally brought upon appeal, or of the cause of action as set out in the complaint, as amended. Rev. Stat., sect. 2837, 3058. The amendment changed the cause of action. Hansberger v. Railroad, 43 Mo. 196. For our supreme court have expressly drawn a wide line of demarkation between a cause of action in one's representative capacity, and a cause of action in one's individual capacity, expressly holding that they were different and distinctly separate. Burdyne v. Mackey, Ex'r, 7 Mo. 374. And, consequently, as it is the claim as presented, not the claim as decided or allowed, which is the measure of the power of the court. Henks v. Debertshauser, 1 Mo. App. 402. Our second point is directed against the action of the lower court in refusing to give the two instructions offered by the defendant upon the question as to whether or not it was agreed that an estimate was to be furnished by the respondent before doing the work and furnishing the material here sued for. The evidence upon this proposition was conflicting, and our instructions being, as we contend, unobjectionable, either as to form, or as to the propositions of law they enunciated, we submit that the court erred in refusing to give them. Parsons on Contracts, sect. 475; Baker v. Johnson Co., 37 Iowa 186; Steele v. Miller, 40 Iowa 402; Davidson v. Porter, 57 Ill. 300.

BIERMAN & HILL, for the respondent: The cause of action was not changed. The respondent had a right to abandon the lien, and take a general judgment. Patrick v. Abeles, 27 Mo. 184; Mulloy v. Lawrence, 31 Mo. 583.

THOMPSON, J., delivered the opinion of the court.

This action was originally brought before a justice of the peace to enforce a mechanic's lien for work and labor done and materials furnished in the repair of a house which belonged to the estate of the deceased husband of the defendant, Mrs. Leahy. John Travers, to whom the house had been sold since the repairs were made, was originally joined as defendant, but he not having been served with process, the suit was dismissed as to him. A trial before the justice resulted in a judgment for the defendant, and the plaintiff appealed to the circuit court.

I. On the trial in the circuit court, the defendant

objected to any evidence being received under the statement, on the ground that the statement showed that the action was an action against the administratrix of a decedent's estate, and, therefore, that the justice had no jurisdiction. Thereupon, the plaintiff asked leave to amend his statement so as to eliminate therefrom all that portion thereof describing the property of the defendant's husband, James Leahy, and, also, all that portion alleging that the defendant was the administratrix of his estate, and, also, the prayer for a lien. This amendment the court allowed, and the defendant excepted. We think that this amendment was properly allowed. The action was not in substance an action against Mrs. Leahy as administratrix of her deceased husband. It was not alleged in the original statement that the contract was made with her as administratrix, or that she was administratrix at the time when the contract was made. If it had been framed with the view of getting a judgment against Mrs. Leahy, upon a contract made by her as administratrix of her deceased husband, it would not have stated any cause of action at all, because an action can not be maintained, against an administrator, in his representative capacity, upon any demand springing out of contracts made by the administrator. Garnett v. Carson, 11 Mo. App 290. All that part of the petition which described the defendant as “widow of James Leahy, deceased, and now acting as administratrix of his estate,” and which described the property, upon which the work was done and material employed, as belonging to the estate of James Leahy, deceased, and which contains recitals touching the filing of a claim for a mechanic's lien, and which ends with a prayer for the enforcement of such lien against the property described, was evidently inserted by the draftsman with the idea of stating such facts as would entitle the plaintiff to a mechanic's lien against the property. Rejecting it as surplusage, the plaintiff abandoning his attempt to establish his lien, there is still left the statement that the plaintiff made a contract with Mary Ann Leahy to perform certain labor and furnish certain materials upon and for a certain building, the reasonable value of which was $107.80; that the services were performed and the materials furnished in accordance with the contract, and that payment therefor has been demanded and refused. This states a good cause of action, and is not the introduction by amendment of a new cause of action, within the meaning of section 3060, Revised Statutes.

II. It remains to consider whether the cause was properly submitted to the jury.

The plaintiff gave evidence tending to show that the defendant, Mrs. Leahy, requested him to do certain work upon a certain house, in order to put it in a salable condition; that he did the work as requested; that he presented her a bill therefor, $43.75 of which she paid, leaving the balance sued for unpaid, and that she subsequently promised to pay this balance, but failed so to do. It was admitted by the defendant, by her counsel in open court, that the work was done in a workmanlike manner, and that the prices charged therefor were reasonable. This was his case.

The defendant denied that she ever ordered the doing of the work, or knew that it was being done; but she testified that she requested the plaintiff to examine the premises and make an estimate of the cost of doing the work; that, pending this examination, the plaintiff entered into a parol agreement with her to purchase the property of her for $1,200, as soon as she could make a good title, giving her six months in which to do so; that within that time she cleared off the title and tendered him a good deed of the property which he refused, and that he had, in the meantime, done the work for which he sues, without her request or knowledge, and on his own account. This, without further detail, was her defence.

The defendant in his testimony admitted that before he began doing the work he made this parol contract of ...