Blair v. Hall

• Decision Date: 11 March 1918
• Docket Number: No. 2172.,2172.
• Citation: 201 S.W. 945
• Parties: BLAIR v. HALL.
• Court: Missouri Court of Appeals

201 S.W. 945

BLAIR v. HALL.

No. 2172.

Springfield Court of Appeals. Missouri.

March 11, 1918.

Appeal from Circuit Court, Jasper County; R. A. Pearson, Judge.

Action by Cowgil Blair against C. T. Hall and another. Judgment for plaintiff, and defendant Hall appeals. Affirmed.

Sam'l McReynolds and J. W. Halliburton, both of Carthage, for appellant. H. W. Blair, of Webb City, and Gray & Gray, of Carthage, for respondent.

STURGIS, P. J.

The original petition in this case was entitled Cowgil A. Blair, Plaintiff, v. C. T. Hall and J. E. Long, Administrators of the Estate of E. M. Hall, Deceased, Defendants. Later an amended petition was filed entitled Cowgil A. Blair, Plaintiff, v. C. T. Hall et al., Defendants. In each petition in the count on which the case was tried, resulting in a judgment for plaintiff for $710, it is alleged that plaintiff purchased of defendants for $700 a cow for breeding purposes, having informed defendants of such purpose; that defendants represented, stated, and warranted to plaintiff that said cow was a regular breeder, had previously been bred to a named bull, and was then with calf by such bull; that plaintiff relied on such statement and warranty, and that same proved untrue; that said cow was worthless for breeding purposes, and was valuable only for beef; that on discovering such facts plaintiff offered to return such cow, and demanded a return of the purchase price. The defendant Hall moved to strike out the amended petition as being an entire change of parties defendant, which motion was overruled. The defendant Hall then filed an answer, containing a plea in abatement to the jurisdiction of the court over him on the ground that he was brought into court in his representative capacity and was now being proceeded against as an individual. The case then proceeded against Hall only, and the judgment was against him personally.

The point most relied on by defendant for a reversal is that the amended petition is a complete departure from the original, and stated a new and entirely different cause of action. This proposition is met by the fact that the original petition does not state a cause of action against the estate of which defendant Hall was administrator, but only against him individually. The original petition does not state that plaintiff bought the cow from the estate of E. M. Hall at an administrator's sale or otherwise, or that such estate by or through the administrator warranted the cow to be a good breeder so as to make the estate liable for the breach of such warranty. Nor does the original petition ask a judgment against the estate or the administrator in his representative capacity, but asks a personal judgment. The facts stated which constitute the cause of action did not occur before the death of E. M. Hall, and clearly show that there was no liability incurred by him or his estate. In such case the words "administrator of the estate of E. M. Hall" should be regarded as mere descriptio personarum and the cause of action as being against the person. The defendant was not even sued "as" administrator. Where a defendant in a suit is designated administrator or executor of a named estate, the question whether the suit is one against him personally or against the estate represented by him depends on whether the substantive facts constituting the cause of action show a personal liability or a liability of the estate. Thus in 18 Cyc. 982, the rule is stated thus:

"Where suit is brought against a personal representative on a cause of action for which he can be held liable only in his individual capacity, the description of him in the pleading as executor or administrator will be considered surplusage, and may be rejected as such. It does not vitiate the pleading. The naming of him as executor or administrator neither adds to nor diminishes his individual responsibility, and is a matter of form and not of substance. So where an action is brought, the object of which is to charge the defendant individually, and legal ground for the individual liability of the representative is set forth in the pleading, the fact that he was named therein as executor does not vitiate the pleading, and this allegation may be treated as surplusage."

In Hanson v. Blake, 63 W. Va. 560, 60 S. E. 589, the court said:

"The mere words `administrator of Charles Lomadew, deceased,' following the name of defendant in the writ and declaration, do not so make it. Such words are merely descriptive of the person of defendant, and not of the character or capacity in which he is sued, since the averments of the declaration are not against him in such representative capacity. No promise or undertaking of decedent is averred, for which it is sought to hold defendant as his personal representative liable out of property in his hands to be administered. Whether such words as follow the name of defendant are to be deemed descriptive of his person or of the character and capacity in which he is sued is to be determined by the allegations of the declaration. The averments of the declaration being, in fact, against defendant personally, these words must be held to be only descriptive of his person, and may be rejected as surplusage."

See, also, Litchfield v. Flint, 104 N. Y. 543, 11 N. E. 58; Trunk Co. v. Delano, 162 Mo. App. 402, 142 S. W. 770.

We also think that under our liberal practice as to amendment of pleadings, even if a defendant is sued and brought into court in his representative capacity, the petition may be so amended as to charge him individually. In 18 Cyc. 983, the rule is stated to he:

"If defendant is sued in a representative capacity, the pleadings may be amended so as to permit a recovery against him personally, and if sued personally, the pleading may be amended so as to charge him in his capacity as administrator."

In White v. McFarland, 148 Mo. App. 338, 352, 128 S. W. 23, 27, the court held that where a person was sued in his representative capacity and made default, it would be irregular, and would warrant setting the judgment aside to render a personal judgment against him, but the court remarked that:

"We are not saying plaintiff could not have amended if defendant had appeared."

Other courts have held such amendment allowable. Boyd v. Trust Co., 187 N. Y. 262, 79 N. D. 999, 9 L. R. A. (N. S.) 399, 116 Am. St. Rep. 599, 10 Ann. Cas. 146; Lucas v. Pittman, 94 Ala. 616, 10...