Barnett v. Colonial Hotel Bldg. Co.

• Decision Date: 11 May 1909
• Citation: 137 Mo. App. 636,177 Mo. App. 477,119 S.W. 471
• Parties: BARNETT et al. v. COLONIAL HOTEL BLDG. CO.
• Court: Missouri Court of Appeals

119 S.W. 471

137 Mo. A. 636

177 Mo. A. 477

BARNETT et al. v. COLONIAL HOTEL BLDG. CO.

St. Louis Court of Appeals. Missouri.

May 11, 1909.

On Rehearing, May 25, 1909.

1. ACTION (§ 1) — CAUSE OF ACTION — ELEMENTS —BREACH OF CONTRACT.

A plaintiff's cause of action for a breach of contract is composed of his contractual right, the other party's breach, and the remedy for the breach.

2. CORPORATIONS (§ 503)—CIVIL ACTIONS— VENUE—WHERE CAUSE OF ACTION ACCRUES.

Rev. St. 1899, § 997 (Ann. St. 1906, p. 878), provides that suits against corporations shall be commenced either in the county where the cause of action accrued or in one where the corporation has an office or agent for the transaction of usual business. A firm of architects in St. Louis sent a member of the firm to Springfield, where he made propositions to a hotel corporation to draw plans for a hotel. After his return to St. Louis, the company accepted the proposition and notified the firm at St. Louis, at which place the plans were prepared, and when prepared were sent to Springfield. Held that, on failure of the corporation to pay the architects the amount agreed on for their services, the venue of the action for the breach is in the county in which Springfield is located, as that is the county where the cause of action accrued and where the breach occurred.

3. ABATEMENT AND REVIVAL (§ 85)—PLEADING TO JURISDICTION AND IN BAR.

Where an objection to the venue does not appear in the service of the summons or the return or on the face of the petition, it is proper to raise it by answer, and the objection is not waived by joining with the plea to the jurisdiction a plea to the merits.

4. APPEARANCE (§ 23)—WAIVER OF OBJECTION TO VENUE.

Where defendant raises an objection to the venue in an answer and also pleads to the merits and goes to trial on the case, after stipulating for a continuance and for the trial of the cause by the court and that it does not waive the objection to the venue by its general appearance and introduction of evidence to the merits, it does not waive its objection to the venue.

On Rehearing.

5. COURTS (§ 231)—APPELLATE JURISDICTION —CERTIFYING CASE TO SUPREME COURT.

Under Const. Amend. 1884, § 6 (Ann. St. 1906, p. 244), providing that, when a Court of Appeals shall render a decision which any one of the judges shall deem contrary to a previous decision of one of the Courts of Appeals or of the Supreme Court, the said Court of Appeals must, of its own motion, certify said cause to the Supreme Court, the power of certifying cases to the Supreme Court rests solely on the determination of one of the judges of the Court of Appeals, and no power is granted to a litigant to move to have the case certified to the Supreme Court as a matter of right because of alleged conflict in decision.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by George G. Barnett and others against the Colonial Hotel Building Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Plaintiffs were a firm of architects with their main office in the city of St. Louis, and defendant an incorporated company which proposed to build a hotel in the city of Springfield. This action is to recover a balance alleged to be due for services rendered by plaintiffs to defendant in making preliminary studies and preparing plans and specifications according to which the hotel was built. In the first paragraph of the petition it is alleged: That defendant agreed to pay plaintiffs a sum equal to 2½ per cent. of the cost of the building, and this turned out to be $173,500; that plaintiffs prepared the plans and specifications at their office in St. Louis, delivered them to defendant, the latter accepted them, and afterwards paid plaintiffs $3,000 on what was due, leaving a balance of $1,337.50, for which judgment was prayed. To show jurisdiction in the circuit court of the city of St. Louis, there is a statement that the cause of action set out and pleaded accrued in said city. The second paragraph is like the first, except in asking for the reasonable value of plaintiffs services, instead of a balance on an agreed price. The third paragraph was for the reasonable value of services rendered by one of the plaintiffs in making a trip to Springfield February 5, 1906, at defendant's request, and consulting with its officers regarding the building. The value of this service was laid at $50. The answer consisted of a plea to the jurisdiction of the court in the first paragraph and of a plea in bar in the nature of a general denial in the second. In setting out the first plea, the defendant alleged: That it was a corporation organized under the laws of Missouri, a resident of the city of Springfield, Greene county, where its principal office and place of business was and always had been kept; that it never had kept an office or agent for the transaction of its usual and customary business in the city of St. Louis, and plaintiffs' alleged causes of action stated in the three counts of their petition did not arise there, but whatever cause of action they had arose in Greene county, the circuit court of which had exclusive jurisdiction of the case. The conclusion of this paragraph of the answer was an averment of lack of jurisdiction in the court of the cause or of defendant, and a prayer that defendant be dismissed with its costs.

Prior to the trial two stipulations were made by the parties; the first for a continuance from an earlier term to the one when the cause was tried, and the second for a trial by the court without a jury. It was agreed by both parties, in the first stipulation, it should not affect or waive defendant's plea to the jurisdiction, and, in the second, that, in waiving a jury and consenting to a trial by the court, defendant reserved the right to insist on its plea to the jurisdiction and did not waive the same. Both parties put in their entire evidence continuously at the first trial—alike that relating to the special plea and what related to the merits— but the court decided only the former question and said that, having determined there was no jurisdiction, it was neither necessary nor proper to pass on the merits of the case. One of the plaintiffs was in Springfield several times consulting with the directors of the hotel company concerning the proposed building and the plans and specifications. On his first visit he went over the matter fully with the building committee, agreeing, he admits, to draw plans and specifications for 2½ per cent. of the cost of the building; but the testimony for defendant inclined to prove he was to charge nothing unless the cost of such a building as he could draw plans for would be no more than $180,000. In his first talk with the building committee of defendant's board of directors in Springfield, some of them were in favor of awarding the contract to draw the plans at once, but the committee finally decided to hear from other architects before doing so. A few days later, and after conferring with other architects, the committee decided to employ plaintiffs, informed the board of directors of the decision, the latter ratified it, and plaintiffs were notified they were employed by letter and also by the president of the hotel company in person, who went to St. Louis shortly afterwards. When the plans and specifications were ready, plaintiffs sent them to Springfield to defendant; but no bids could be obtained from contractors to build for the maximum price unless changes were made in the plans.

At the request of defendant, the court found the facts specifically, and we will recite the substance of the findings, with the comment that the evidence amply supported them. They were as follows: "Defendant is a corporation having its chief office and place of business in said (Greene) county and never has had or maintained an agent in St. Louis for the customary transaction of business. Plaintiffs are partners engaged in the business of architects and superintendents for the erection of buildings, and their office and place of business is in the city of St. Louis, in this state. The summons issued in this case was directed to the sheriff of the city of St. Louis, who returned defendant could not be found in said city. Whereupon an alias summons was issued herein, directed to the sheriff of Greene county, state of Missouri, which alias summons was served upon the defendant in that county. The plaintiffs, by one of their firm, went from the city of St. Louis to Springfield in Greene county, appeared before the building committee of defendant, advised with said committee about the plans and specifications for the proposed hotel, and finally made at Springfield a proposition to defendant whereby the plaintiffs offered to prepare plans and specifications for said hotel for a compensation of 2½ per cent. of the estimated cost of the building. After the representative of the plaintiffs had left Springfield and returned to St. Louis, defendant's board of directors took under consideration at the office of the company at Springfield said offer of plaintiffs, and by resolution accepted the same and notified the plaintiffs of said acceptance both by letter addressed to them at the city of St. Louis, and by a verbal communication made to the plaintiffs in St. Louis by one of the officers of the defendant. In pursuance of the contract thus entered into, plaintiffs prepared plans and specifications at their office in the city of St. Louis for the erection of said hotel building, and after completing said plans and specifications the same were turned over or delivered by the plaintiffs to defendant at Springfield. After the plans and specifications were thus delivered to the defendant by the plaintiffs, the defendant invited bids for the erection of said hotel building according to said plans and specifications, to be submitted to the defendant at Springfield, in the county of Greene, aforesaid. In pursuance of def...