Arpe v. Mesker Bros. Iron Co.

• Citation: 19 S.W.2d 668,323 Mo. 640
• Decision Date: 06 August 1929
• Docket Number: 28005
• Parties: Charles W. Arpe, Appellant, v. Mesker Brothers Iron Company
• Court: United States State Supreme Court of Missouri

19 S.W.2d 668

323 Mo. 640

Charles W. Arpe, Appellant, v. Mesker Brothers Iron Company

No. 28005

Supreme Court of Missouri

August 6, 1929

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Affirmed.

Thompson Mitchell, Thompson & Young and P. G. McElwee for appellant.

(1) Plaintiff alleges in his petition that he solicited and obtained many orders from the United States Government, and has set forth in the petition the dates that the orders were secured by him; but he further has alleged that his commissions would not become payable until defendant had fully performed and carried out the order. He states that they were executed and performed during the years 1917, 1918 and 1919. Any order executed or performed after September 22 1918, would not be barred by limitation, and since the cause of action is on an account current, the time when said action on account current accrued is the date of the execution or performance of the last order, which plaintiff alleges took place in 1919. Chadwick v. Chadwick, 115 Mo. 581; Ring v. Jamison, 66 Mo. 424. (2) As to each order obtained by plaintiff herein there was a mutual unsettled open account, subject to a later settlement or adjustment if for no other reason than to arrive at what is a reasonable commission. And the fact that all items are on one side of the account does not render the account not a "mutual" account. Chadwick v. Chadwick, supra; Loveland v. Collins, 254 S.W. 22; Prague v. Mallory, 208 Mo.App. 401; 1 R. C. L. 207. (3) Plaintiff's petition is not multifarious. Peper Auto. Co. v. St. L. U. T. Co., 187 S.W. 111. (4) It is not plaintiff's duty in his petition to show that the contract is not barred by the Statute of Frauds. Mathews v. Wallace, 104 Mo.App. 98; Biest v. Shoe Co., 97 Mo.App. 149. In order to come within the statute, the contract must not only allow but require more than a year for its performance. Pitcher v. Wilson, 5 Mo. 46. (5) The code declares it the duty of the court "to distinguish between form and substance," to disregard any defects in the pleading which shall not affect the substantial rights of the adverse party, and provides that "in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties." Pleadings are construed most favorable to the pleader. Stillwell v. Hamm, 97 Mo. 579; Davis v. Jacksonville, 126 Mo. 69; Roy v. Bateler, 40 Mo.App. 213.

R. M. Nichols for respondent.

(1) The circuit court had no jurisdiction to set aside the judgmentment of nihil dicit entered at the October term (October 18, 1926), after the elapse of that term, at the December term of said court, and therefore this court is without jurisdiction to consider this appeal. Secs. 1550 1527, R. S. 1919; Freeman on Judgments (3 Ed.) sec. 96; Ashby v. Glasgow, 7 Mo. 320; Hill v. St. Louis, 20 Mo. 584; State ex rel. v. Ross, 118 Mo. 47; Hall v. Lane, 123 Mo. 633; Lovitt v. Russell, 138 Mo. 474. (2) If there were any meritorious grounds for the setting aside of this judgment for dismissal, after the elapse of a month and a half, and after the term at which it was rendered had elapsed, the reason should have been embodied in a written motion and notice thereof given to the opposing party and not done by "oral application of plaintiff." The action of the court in setting aside the judgment of dismissal and reinstating said second amended petition and assigning the cause to Division No. 1, and adopting the entry of the demurrer sustained by another judge at a preceding term in the same division, all upon the oral and ex parte application of the plaintiff, was without jurisdiction and void. Secs. 1526, 1527, R. S. 1919; Hill v. St. Louis, 20 Mo. 584; Castilo v. Bishop, 51 Mo. 162; Billingham v. Miller & F. C. Co., 115 Mo.App. 154. (3) Under the Practice Act oral motions are unauthorized; all motions must be in writing, specifying the ground upon which they are founded and are required to be filed one day before they are heard. Secs. 1268, 1267, R. S. 1919; Paddock v. Somes, 102 Mo. 226; White v. Railroad, 202 Mo. 539. (4) Even if the oral motion was a legal proceeding and it had been made within the term it was not within the four days allowed by the statute and, therefore, the court would have no jurisdiction to consider this appeal. State ex rel. Conant v. Trimble, 311 Mo. 128; Boegemann v. Bracey (Mo.), 285 S.W. 992; Marsella v. Marsella, 288 Mo. 501; State ex rel. Zeppenfeld v. Calhoun, 219 Mo.App. 485; Lemp v. Brewing Assn., 299 S.W. 844. (5) Appellant averred that the "U.S. Government purchased from defendant various and sundry articles and materials on or about the following dates and at the following prices, to-wit." Then follows "date and Mesker order number," "article and price" and "amount" and sixty-nine items of materials sold by respondent to the U.S. Government. Under the averments, "said commissions to be payable upon acceptance and performance of said contracts and orders by defendant," Mesker's order numbers, with the date, description of the article and price, and the amount of each article, would indicate "acceptance and performance of the contract and orders by defendant," upon each of which events "said commissions to be payable." Whether this suit be held to be a suit upon sixty-nine contracts stated in one count or a suit upon a quantum meruit, the action not having been begun until September 22, 1923, which was more than five years after the date of the last item and the last contract, which was July 13, 1918, the cause or the respective causes of action are barred by the five-year Statute of Limitation. Sec. 1317, R. S. 1919. (6) "Said commission to be payable upon acceptance and performance of said contracts and orders by defendant." "Said contracts so secured were executed and performed by the defendant during the years 1917, 1918 and 1919." Compare these averments with the following allegations as to the dates of rendition of services and accrual of liability: "Thereafter, and in reliance upon said agreement of employment he solicited orders . . . and secured orders and contracts . . . whereby the U.S. Government purchased from defendant various and sundry articles and materials on or about the following dates and at the following prices, to-wit." Then follows Mesker's order numbers, dates of purchases, description of articles and amounts, the last of which is under July 13, 1918. After the descriptive schedule and of dates and amounts, then follows this allegation: "That all of said articles and materials were furnished and sold by defendant to the U.S. Government for an amount aggregating approximately" $ 2,388,272.32. Then follows an averment that $ 90,000 "is a fair and reasonable commission for obtaining the contracts and orders from the U.S. Government, secured by plaintiff during the years 1917 and 1918." There can be no reasonable doubt from these averments that the pleader intended to aver that the services were rendered in 1917 and 1918; nor that the U.S. Government "purchased from the defendant the various and sundry articles and materials on or about the following dates and at the following prices, to-wit," because this schedule is followed by a further averment, "Said articles and materials were furnished and sold by the defendants to the U.S. Government." In view of the several allegations of service rendered, acceptance and performance of the orders, giving the exact date in the year 1917-1918, and in view of the fact that there is no allegation of either a date or performance in 1919, and that in no averment of the petition is the right of recovery of the commission placed upon the delivery of the materials to the Government or the payment therefor, the Court was justified in treating the additional statement of execution and performance in 1919 as an immaterial averment, as not an issuable fact, which, of course, would not be confessed by the demurrer and would not serve appellant's purpose of tolling the statute to 1919, after the date of the last contract averred by him as of July 13, 1918, and after the allegation that all of the contracts were accepted and performed by the defendant in 1917 and 1918. Sidway v. Stock Co., 163 Mo. 374; Verdin v. St. Louis, 131 Mo. 151; Lappin v. Nichols, 263 Mo. 285; 6 Ency. Plead. & Prac. 255, 270; 13 Ency. Plead. & Prac. 237. (7) The cause of action stated in the second amended petition, prior to the amendment of June 1, 1926, namely, "that the plaintiff should receive from the defendant, in addition to his salary, a reasonable commission on all contracts and orders which the plaintiff could obtain for the defendant from the U.S. Government," and following with the further averment that "reasonable commission for obtaining the contracts and orders for the defendant from the U.S. Government, secured by plaintiff during the years 1917 and 1918," stated a different cause of action, as to the accrual of respondent's liability, under the allegations of the second amended petition (before amendment), because the plaintiff would only be required to prove before the amendment the contract as stated and the services rendered during the years 1917 and 1918, but under the amendment of June 1, 1926, he would be required to prove, in addition to the contract alleged in the second amended petition, a further provision of the contract, to use the pleader's language in the amendment, "said commission to be payable upon acceptance and performance of the said contracts and orders by the defendant." The amendment therefore so changed the cause of action that it would not be an amendment of the original cause of action before the amendment and cannot be regarded as relating to the...