Beattie Mfg. Co. v. Gerardi

• Decision Date: 17 December 1901
• Citation: 166 Mo. 142,65 S.W. 1035
• Parties: BEATTIE MFG. CO. v. GERARDI et al.
• Court: Missouri Supreme Court

65 S.W. 1035

166 Mo. 142

BEATTIE MFG. CO. v. GERARDI et al.

Supreme Court of Missouri, Division No. 2.

December 17, 1901.

PLEADING — DEMURRER TO PETITION — AMENDED PETITION — NEW CAUSE OF ACTION — RES JUDICATA — CAUSE OF ACTION — SUFFICIENCY — DUPLICITY — ANSWERING OVER — WAIVER.

1. Under Rev. St. 1899, § 598, specifying the grounds upon which a defendant may demur to plaintiff's petition, the objection that an amended petition changes the cause of action cannot be raised by demurrer, since such objection is not specified in the statute, and does not appear upon the face of the record; but such objection can only be raised by a motion to strike out.

2. A petition which sets up a written contract between the owner and tenant of real estate, whereby the tenant deposited with the owner a sum of money to be paid to the party making certain improvements on the leased premises, and alleges that plaintiff is the party who made the improvements, states a cause of action against such owner sufficient on demurrer, under the rule that a contract made for the benefit of a third party may be enforced by him, even though he be not named in the contract and was not privy to the consideration.

3. The petition alleged that the tenant and owner of real estate entered into a contract whereby the tenant deposited with the owners a certain sum of money, to be paid to the party making certain improvements upon the leased premises; that plaintiff made the improvements, and that the owner promised to pay plaintiff the money so deposited; that plaintiff filed a mechanic's lien against the tenant, whereupon the tenant transferred her leasehold, with all the improvements thereon made by plaintiff, to the owner; and that the owner converted such improvements to his own use. It further specified the items alleged to have been converted, and averred that the rental value of the property was greatly reduced, and the leasehold estate rendered valueless. Held, on demurrer, that the petition stated a sufficient cause of action against the owner of the property for conversion.

4. Res judicata, being an affirmative defense, not mentioned in Rev. St. 1899, § 598, specifying the grounds upon which a demurrer to a petition may be filed, cannot be invoked by demurrer to a petition, but must be pleaded.

5. A defendant, who answers over after his demurrer to a petition is overruled, is not thereby precluded from demurring to an amended petition, filed after his answer was filed, although both demurrers assign the same grounds of objection.

6. Under Rev. St. 1899, § 593, providing that several causes of action may be joined in the same petition, but that all causes thus joined must affect every party to the action, a petition in an action against two parties, containing two counts, one of which is based on a promise to pay made by one of the defendants, and the other on conversion of property by both defendants, is bad on demurrer, as containing two separate causes of action, since it shows on its face that one of the causes affects only one of the defendants.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Suit by the Beattie Manufacturing Company against Annie Gerardi and others. From a judgment for defendants, entered on demurrer to the petition, plaintiff appeals. Affirmed.

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 the 18th day of November, 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 the 19th day of January, 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 the 2d of March, 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 10 years from February 24, 1893; that the plaintiff complied with its contract in all respects, and on or about the 16th day of June, 1893, the possession of the building and the work and material placed there by plaintiff was delivered to Annie Gerardi; 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 trade fixtures 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 as a gents' furnishing store; that the materials and fixtures furnished by plaintiff were for the purpose of fitting the building for carrying on a restaurant and saloon; that Clark's purpose in taking the conveyance from Gerardi and wife "was to obtain the exclusive possession and control of said premises, and the material and fixtures aforesaid, in order to defeat the claim of plaintiff, and thereby obtain the property aforesaid, on which plaintiff had filed a mechanic's lien, and to charge, direct, and convert said material and fixtures for his entire use and benefit, and to cheat and defraud plaintiff out of his debt," — all of which was done without plaintiff's consent, and to evade and destroy plaintiff's mechanic's lien; that the deed was executed by Gerardi and wife with the understanding and in consideration that Clark would have them released from the debt of plaintiff. It was further alleged that Clark in 1894 leased said premises and fixtures to Robert Beckley, in consideration of a monthly rental, "and also pay the debt of plaintiff"; that Beckley took possession, and accepted the premises and fixtures, for a term of ____ months, for which he paid Clark $2,800, and defendant Clark leased said premises for a term of years without plaintiff's consent; that Gerardi and wife are insolvent; that Gerardi and wife contracted with plaintiff for said material and fixtures with the knowledge and consent of Clark; that the various sums of money paid plaintiff upon said account were paid by Clark under an arrangement made with Annie Gerardi. The prayer of the petition is that plaintiff recover from Clark the full amount of its debt, and to that end that this cause be consolidated with the mechanic's lien suit, and that the same be then tried and considered together, and that the said defendant Clark be adjudged and ordered to pay plaintiff the sum due it, $12,313.71, with interest, etc. On the 8th day of February, 1898, plaintiff by consent of all the parties filed an amended petition. In the first count is alleged the relation of the parties, the making of this contract between plaintiff and Gerardi and wife, and its performance substantially as stated in the original petition. It is also alleged that Annie Gerardi entered into an agreement in writing, by which Mrs. Gerardi paid to Clark $10,000, and said Clark was to add thereto the sum of $2,400, making $12,400, which Clark agreed to pay to the party or parties who would furnish the material and conduct the improvements contemplated; that...