Beattie Manufacturing Company v. Gerardi
| Decision Date | 17 December 1901 |
| Citation | 65 S.W. 1035,166 Mo. 142 |
| Parties | BEATTIE MANUFACTURING COMPANY, Appellant, v. GERARDI et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.
Affirmed.
J. F. & R. H. Merryman for appellant.
(1) The first ground for demurrer is that the second amended petition, and each of the counts thereof, constitute a change in the causes of action herein. We submit that this ground of demurrer comes too late. It makes no difference whether the original petition contains the same causes of action or not as the filing of the first amended petition was the abandonment of the original one. Ticknor v Voorhees, 46 Mo. 110; City of St. Louis v Gleason, 15 Mo.App. 25; Simms v. Field, 24 Mo.App. 565. Clark, having failed to object to the first amended petition because it set forth a different cause of action from the one set forth in the original petition, can not now demur to the second amended petition on this ground. (2) Second ground of demurrer is that the first count of said second amended petition does not state facts sufficient to constitute a cause of action against this defendant. "A person for whose benefit an express promise is made may maintain an action upon it in his own name." Meyers v. Lowell, 44 Mo. 328; Ellis v. Harrison, 104 Mo. 270; Rogers v. Gosnell, 51 Mo. 466; Fitzgerald v. Barker, 70 Mo. 685; Fitzgerald v. Barker, 85 Mo. 14. (3) The fourth ground for demurrer is that plaintiff-appellant has improperly joined in the same petition several causes of action. This ground comes too late. By referring to the record it will be seen that the respondent filed a demurrer to the amended petition on the ground that said amended petition failed to state facts sufficient to constitute a cause of action in either count and that "appellant had improperly united in the same petition several causes of action." This demurrer was taken up, argued and overruled by the court, and thereupon defendant filed an answer. Defendant still demurs on the ground of a misjoinder of causes of action, but he can not demur on this ground after filing answer. Bank v. Dillon, 75 Mo. 380. Appellant can join the causes of action set forth in the petition for the reason that the first count is founded on a contract, and the second count is one in equity brought for the purpose of protecting property upon which appellant had a mechanic's lien, both counts having arisen out of the same transaction or transactions connected with the same subject of action. Morrison v. Harrington, 120 Mo. 665. (4) The fifth ground for demurrer is that the plaintiff has improperly joined this defendant with co-defendants in each of the counts in the second amended petition. This position is untenable. The respondent, Charles Clark, is the only party against whom appellant prays judgment, and if a good cause of action is stated against him he can not complain because Annie Gerardi and Joseph Gerardi are joined with him. These two parties are not complaining, and Clark can not object because he is made a party with them. Brown v. Woods, 48 Mo. 330; Bank v. Bayliss, 41 Mo. 285; Ashley v. Winston, 26 Mo. 210; State v. Parris, 35 Mo. 371.
Boyle, Priest & Lehmann and Geo. W. Easley for respondents.
(1) The amended petition in each count declared upon a contract between Clark and Mrs. Gerardi for the benefit of plaintiff -- that is, that Mrs. Gerardi deposited $ 10,000 with Clark to be expended for the material and fixtures to be furnished by plaintiff. The second amended petition in each count abandons the allegations that the contract between Clark and Mrs. Gerardi was for the benefit of plaintiff, and declares upon an express promise on the part of Clark to pay plaintiff. Inasmuch as the first amended petition counts upon a promise for the benefit of a third person, and the second amended petition upon an express promise to pay, we contend that the plaintiff, by this amendment, changed the cause of action. The authorities in this State are unanimous in holding that a pleading may not be so amended as totally to change the cause of action or defense. Heman v. Glann, 129 Mo. 325; Lumpkin v. Collier, 69 Mo. 170; Daudt v. Mechens, 13 Mo.App. 592; Parker v. Rodes, 79 Mo. 88. The test by which it may be determined whether or not a change of the cause of the action has been made, is to ascertain whether the same evidence will support both petitions, or whether the same measure of damages will apply to both. Scoville v. Glassner, 79 Mo. 449; Sims v. Field, 24 Mo.App. 557; Heman v. Glann, 129 Mo. 325; Sears v. Low & Co., 56 Mo.App. 122. (2) It is pleaded in all the counts of all the petitions filed, that plaintiff, prior to the institution of this suit, brought suit to enforce a mechanic's lien against the premises on account of the materials furnished by it, which resulted in a judgment in its favor against the Gerardis, and in the establishment of a mechanic's lien against their leasehold interest, and in a judgment in favor of Clark, and a denial of a lien against the freehold estate held by him. If Clark had expressly promised to pay for the materials and fixtures, under the issue in the mechanic's lien suit, a judgment would have been obtained against him establishing the lien against the freehold. That matter being within the issues of that case -- a suit between identically the same parties, and in relation to the same property -- is res adjudicata. In that suit it must have been adjudicated that Clark was not indebted to plaintiff, and that the freehold estate was not subject to the payment of any indebtedness from the Gerardis or Clark. That being true, that judgment is conclusive against Clark's liability to plaintiff. State ex rel. v. Branch, 134 Mo. 592; Short v. Taylor, 137 Mo. 517; Mason v. Summers, 24 Mo.App. 174. Not only is the judgment res adjudicata as to the matters actually determined in the mechanic's lien case, but also as to all those matters which might have been adjudicated under the issues. The plaintiff might, in the mechanic's lien case, have either alleged the contract made as for its benefit, or the express promise alleged in both counts of the second amended petition, and as those matters might have been adjudicated in that case, they are res adjudicata in this. Mason v. Summers, 24 Mo.App. 174; Case v. Garten, 33 Mo.App. 597; Dickey v. Heim, 48 Mo.App. 114; Hickerson v. Mexico, 58 Mo. 61; Lightfoot v. Wilmot, 23 Mo.App. 5. (3) It is a cardinal rule of pleading that where different causes of action are joined in the same petition, they must affect all the parties to the action, that is, that each cause of action must affect all the parties that are joined in any other cause of action in the same petition. Liney v. Martin, 29 Mo. 28; Doan v. Holly, 25 Mo. 357; s. c., 26 Mo. 186.
This is an appeal by plaintiff from the judgment of the court below in sustaining a demurrer of the defendant, Clark, to the second amended petition of the plaintiff.
The facts are stated by defendants substantially as follows:
On November 18, 1893, plaintiff instituted a suit in the circuit court of the city of St. Louis, against the defendants herein, to enforce a mechanic's lien against the identical property described in the petition in this case, which suit was pending at the time of the institution of this suit. On January 19, 1895, the same plaintiff instituted another suit against the same defendants, involving the identical property described in the petition in the mechanic's lien case.
In the petition, in the second suit, was alleged the incorporation of plaintiff; that on March 2, 1890, it entered into a contract with defendants Gerardi and wife, to make certain alterations and additions to a building described, of which the defendant, Charles Clark, was the owner, who had leased the same to Gerardi and wife for a period of ten years from February 24, 1893; that the plaintiff complied with its contract in all respects, and on or about June 16, 1893, the possession of the building and the work and material placed there by plaintiff was delivered to Annie Gerardi, and that a balance of $ 12,313.17, subject to an unsettled account claimed by Mrs. Gerardi by way of damages for not completing the work by May 1, 1893, was due and owing plaintiff; that a copy of the mechanic's lien heretofore sued upon is made part of the petition. The petition then alleges the institution and pendency of the mechanic's lien suit as above set forth; that after the institution of said mechanic's lien suit and after the defendants had filed answers thereto, on or about January 12, 1894, Gerardi and wife executed and delivered a deed to the estate, upon which the mechanic's lien was claimed, and also conveying any and all interest which said Gerardi and wife had in and to any fixtures, trade or improvements constructed or built upon or in said premises by Gerardi and wife, which the petition alleges included all the fixtures of every kind and description as well as the material furnished and placed in said building by plaintiff and described in the account embraced in the mechanic's lien aforesaid, the possession of all of which were delivered by Gerardi and wife to Clark. The petition then alleges: "And the defendant, Charles Clark, has appropriated to his own use and benefit all of said material and fixtures of every kind, and has particularly converted to his own use and benefit the fixtures and materials described in the following account which plaintiff charges him with, to-wit:" Then follows an exact duplicate of the account which was the basis of the mechanic's lien. It is then alleged that Clark used the improvements and fixtures, with others used by him for the purpose of fitting the building...
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