Weber v. Union Mut. Life Ins. Co. of Maine

• Decision Date: 02 January 1878
• Citation: 5 Mo.App. 51
• Parties: FREDERICK H. WEBER, Respondent, v. UNION MUTUAL LIFE INSURANCE COMPANY OF MAINE, Appellant.
• Court: Missouri Court of Appeals

5 Mo.App. 51

FREDERICK H. WEBER, Respondent,

v.UNION MUTUAL LIFE INSURANCE COMPANY OF MAINE, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 2, 1878.

1. A petition which states that plaintiff was employed by defendant for one year, at a stated price per month; that plaintiff worked for “several months” under the agreement, and was willing to work the remaining period of the term, but that “defendant failed and refused to comply in any manner with the terms of the contract,” and “failed and refused to pay plaintiff for the services rendered;” and which asks for judgment for the year's salary, is bad for failure to set up facts constituting a cause of action, and advantage may be taken thereof by motion in arrest.

2. Though the breach alleged may justify plaintiff in abandoning the work, and may entitle him to recover for the services performed, it will not authorize a recovery for the work unperformed.

3. Under such a petition, it is error to admit testimony that defendant refused to carry out the contract by failing to comply with the law of the State where plaintiff was employed to work, thus rendering it impossible for plaintiff to act without exposing himself to a criminal prosecution. The pleadings gave defendant no notice of the character of the evidence, so that he might prepare to meet it.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

PATTISON & DOOLEY, for appellant: A petition must state all the facts constituting a cause of action.-- Garvey v. Fowler, 4 Sandf. 667; Pier v. Heinrichoffen, 52 Mo. 333; Bayse v. Ambrose, 32 Mo. 484; Eyerman v. Cemetery Assn., 61 Mo. 489; Marsh v. Richards, 29 Mo. 99; Jennings v. Lyons, 39 Wis. 553; Smith v. Brown, 17 Barb. 431. A failure to pay for services performed under a contract is such a breach of the contract as will justify an abandonment of the work, and will authorize a recovery for the work performed.-- Fitzgerald v. Hayward, 50 Mo. 524. The failure to state facts sufficient to constitute a cause of action is not waived by failure to demur, and the question may be raised by motion in arrest.--Wag. Stat. 1015, sec. 10; Pickering v. Telegraph Co., 47 Mo. 157; House v. Powell, 45 Mo. 381.

CHANDLER & YOUNG, for respondent: A judgment will not be set aside on motion in arrest because of any omission in the pleadings for which a demurrer, if interposed, would have been sustained.--Wag. Stat. 1034, sec. 5; 1036, secs. 19, 20; 1037, sec. 20; Dean v. La Motte, 59 Mo. 525. “Appellate courts will not reverse on objections to testimony, where the grounds of objection are not set out.”-- Capitol Bank v. Armstrong, 62 Mo. 69. A party cannot object to instructions given at his own request.-- Crutchfield v. Railway Co., 64 Mo. 257.

BAKEWELL, J., 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 fully agreed to the terms of said contract of employment as aforesaid, and, in pursuance of the terms of said employment, entered into the service of said defendant, and into the discharge of the services which he was employed by defendant to perform; and that plaintiff did and performed services in and about the prosecution of defendant's business, and in securing applications for insurance in defendant in the said State of Kansas, for several months; but that defendant failed and refused to perform and carry out the conditions of the said contract on its part to be performed, and failed and refused to pay the plaintiff for the services rendered by him in pursuance of said contract, and failed and refused to comply in any manner with the terms and conditions of said contract; that plaintiff held himself at all times ready and willing to perform the services to be by him performed as aforesaid, and to fully comply with the terms of said contract on his part during the time of the continuance of said contract; that plaintiff's expenses during the year, commencing the first day of April, 1874, were the sum of twelve hundred dollars; that defendant has never paid the plaintiff the said sums for his salary and expenses, nor any part thereof, and, though requested so to do, has failed and refused, and still fails and refuses to pay the same, or any part thereof, and that the same is still due and owing to plaintiff.” The plaintiff asks judgment for $3,000. The answer was a general denial.

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,...