Bush v. Haeussler

• Decision Date: 17 May 1887
• Citation: 26 Mo.App. 265
• Parties: ISIDOR BUSH, Appellant, v. H. A. HAEUSSLER, Respondent.
• Court: Missouri Court of Appeals

26 Mo.App. 265

ISIDOR BUSH, Appellant, v. H. A. HAEUSSLER, Respondent.

Court of Appeals of Missouri, St. Louis.

May 17, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

LEE SALE, for the plaintiff, appellant: Demurrer will not lie for the improper commingling in one count of matters that might be properly united in a petition by different counts, but only for the substantial error of uniting, whether in one or different counts, matters that can not be united at all. Otis v. Bank, 35 Mo. 128; Mulholland v Rapp, 50 Mo. 42; Bliss on Code Plead., sect. 412; Bass v. Comstock, 38 N.Y. 21. Where a person answerable to two jointly upon a contract, settles with one of them, so that that one has no longer any interest in the matter in dispute, it is a severance of the cause of action and the debtor is liable to the other in an action brought by him alone. Hawes on Parties to Actions, sect. 94, p. 270; Baker v. Jewell, 6 Mass. 461; Richmond v. Parker, 12 Met. 48; Railroad v. Railroad, 119 Mass. 498; McConnell v. Braynor, 63 Mo. 461; Pettingill v. Jones, 21 Mo.App. 210. Under a code like ours, which prescribes one form of action, a petition stating facts which entitle the plaintiff to any form of relief, is not demurrable, on the ground that it does not state facts sufficient to constitute a cause of action. McPherson v. Weston, 64 Cal. 275; Austin v. Seligman, 18 F. 519; Miltenberger v. Morrison, 39 Mo. 71; Bennett v. Preston, 17 Ind. 291; Stuyvesant v. Mayor, 11 Paige 415.

JAMES O. BROADHEAD and CECIL V. SCOTT, for the defendant, appellant: One of two joint obligees in a joint contract can not sue upon the contract alone, nor release such obligation. Parsons on Cont. (7 Ed.) 13; Bliss on Plead., sect. 63; Clark v. Cable, 21 Mo. 223; Rainey v. Smizer, 28 Mo. 310; Dewey v. Casey, 60 Mo. 224; Thieman v. Goodnight, 17 Mo.App. 429; Henry v. Mt. Pleasant Township, 70 Mo. 500. It is a ground of demurrer that several causes of action have been improperly united in the petition, whether the same be done in one or more counts. Rev. Stat., Mo. 1879, sects. 35, 15; Baker v. Raley, 18 Mo.App. 567; Bank v. Dillon, 75 Mo. 380, and cases cited

OPINION

THOMPSON J.

This is an appeal from a judgment rendered for the defendant upon demurrer to the following petition:

" The plaintiff, by leave of court, files this his amended petition, and states: That, heretofore, on the twentieth day of January, 1881, in a cause then pending in the circuit court of the city of St. Louis, wherein Bank of Commerce was the plaintiff, and Gustavus Hoeber was the defendant, being cause No. 52,389 of the said court, a judgment was rendered in favor of the said Bank of Commerce, the plaintiff, against the said Hoeber, for the sum of $4,750.94, and costs, the said judgment bearing interest at the rate of ten per cent. per annum from the time of its rendition, and the said judgment was duly entered in the records of that said court; that, at the request of the defendant and said Hoeber, this plaintiff, Isidor Bush, and Margaret B. Augustine, consented to become sureties of said Hoeber on an appeal bond executed for the purpose of perfecting an appeal by said Hoeber, from the said judgment of the circuit court to the St. Louis court of appeals, and that said Bush and Augustine did agree that, in case the said judgment of the circuit court should, upon such appeal, be affirmed by said St. Louis court of appeals, said Bush and Augustine would execute an appeal bond for the purpose of perfecting an appeal, by said Hoeber, from such judgment of the St. Louis court of appeals to the supreme court of the state of Missouri; that, for the purpose of partly securing the said Bush and the said Augustine against loss or damage by reason of the execution of said appeal bonds, and each of them, said Hoeber and wife did execute and deliver to the defendant, Haeussler, a deed, whereby said Hoeber and wife did convey to said Haeussler, among other property, the following described real estate, lying and being in the city of St. Louis and state of Missouri, to-wit: Lots four and five, of block three, of Dillon's addition to the city of St. Louis, now city block 478, south, being fifty feet on the west side of St. Ange avenue, by one hundred and twenty-seven feet six inches to an alley, upon which is a deed of trust to secure the payment of five thousand dollars; that, in consideration of the premises, said Haeussler, the defendant herein, did then and there execute an instrument in writing (herewith filed), and did thereby agree and covenant, that, if said Gustavus Hoeber should fail to hold the plaintiff and the aforesaid Mrs. Augustine harmless from any and all liability as his sureties on either of the above mentioned bonds, the defendant would sell all the interest conveyed to him by Gustavus Hoeber and wife, in and to the said property, and would apply the proceeds of such sale to the payment of the judgment in the above mentioned cause, in such manner as the plaintiff and said Augustine might order and direct.

The plaintiff states that said instrument has never been recorded.

The plaintiff further states that, thereupon, the said Gustavus Hoeber did perfect an appeal from the judgment of the circuit court of the city of St. Louis, in said cause of Bank of Commerce v. Hoeber, to the St. Louis court of appeals, and that, in pursuance of, and in conformity with, the aforesaid agreement, this plaintiff and said Mrs. Augustine did execute, as sureties of the aforementioned Hoeber, an appeal bond in the manner required by law; that, thereafter, the said judgment of the said circuit court was, in all respects, affirmed by said court of appeals; that, thereafter, the said Hoeber did prosecute an appeal from the said judgment of the St. Louis court of appeals to the supreme court of the state of Missouri, and, for the purpose of perfecting said appeal, the said Bush and the said Mrs. Augustine, in conformity with, and in pursuance of, the aforesaid agreement, did execute, as sureties of said Hoeber, an appeal bond in the manner required by law, and for the amount required by law, and that, thereupon, the appeal from the said court of appeals to the supreme court of the state of Missouri was duly perfected; that, thereafter, in said supreme court, the judgment in said cause of the said court of appeals was affirmed.

And the plaintiff states that, thereafter, by virtue of his liability and obligation as surety of said Hoeber on the aforesaid bonds, he was compelled to pay, and that he did, on the eighth day of April, 1886, pay to the plaintiff in said cause, the Bank of Commerce aforesaid, the sum of seven thousand, two hundred and twenty-eight dollars, being the full amount of said judgment, with interest thereon to said date, and the sum of _____ dollars, being the costs accrued in said cause.

And the plaintiff states that neither the said Gustavus Hoeber, nor either of his other sureties on the aforesaid appeal bonds, has refunded to the plaintiff any part of the said money so paid out by the plaintiff as surety, as aforesaid; that neither the said Hoeber, nor any of the said sureties on said appeal bonds, or either of them, has paid to the said Bank of Commerce any part of said judgment, and that the same has been paid wholly, and exclusively, by the plaintiff; that the plaintiff has requested the said Hoeber, and his said co-sureties on the said appeal bonds, and each of them, to refund to this plaintiff their just and legal parts of the said money so paid out by the plaintiff on account of said premises, and that said Hoeber and the said co-sureties of the plaintiff, although frequently thereto requested, have refused and failed to pay to the plaintiff such sum as is due from them to the plaintiff, or any part thereof.

The plaintiff states that, after the execution of the written agreement herein mentioned, the said Mrs. Augustine, his co-surety on the aforesaid appeal bonds, did, by agreement with the defendant, release the defendant from any, and all liability to her on the written agreement hereinbefore mentioned, executed...