Caffery v. Choctaw Coal & Mining Company

• Decision Date: 02 June 1902
• Parties: W. H. CAFFERY, Respondent, v. CHOCTAW COAL & MINING COMPANY et al., Appellants
• Court: Kansas Court of Appeals

68 S.W. 1049

95 Mo.App. 174

W. H. CAFFERY, Respondent, v. CHOCTAW COAL & MINING COMPANY et al., Appellants

Court of Appeals of Missouri, Kansas City

June 2, 1902

Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Trimble & Braley and Dudley W. Eaton for appellant.

(1) The court submitted the case to the jury upon a different contract than that pleaded in the amended petition. Woods v. Campbell, 110 Mo. 572; Brown v. Railroad, 101 Mo. 484; Railroad v. Railroad, 118 Mo. 625; Smith v. Railroad, 108 Mo. 243, and cases cited; Edwards v. Railroad, 79 Mo.App. 257; Chitty v Railroad, 148 Mo. 64; James v. Hicks, 76 Mo.App. 108; Manufacturing Co. v. Ball, 43 Mo.App 512, and cases cited; Ragan v. Railroad, 144 Mo 623, 46 S.W. 602; Colliott v. Mfg. Co., 71 Mo.App. 170, and cases cited. (2) The levy of the execution upon the stock in the Indian Territory was regular and properly made. (3) The execution and the levy thereof retained a lien upon the stock after the return of such execution. Barber v. Pear, 31 Ark. 392; Hare v. Hall, 41 Ark. 372; Whiting v. Beebee, 12 Ark. 421; Lawson v. Jordon, 19 Ark. 297. (4) The plaintiff could not in this action assail the judgment of the United States court for the Indian Territory, such an attack upon that judgment would be collateral merely and not permissible. Field v. Sanderson, 34 Mo. 542; Black on Judgments, sec. 290 and 291, are to the same effect; Chrisman v. Divinia, 141 Mo. 122; Union Depot Co. v. Frederick, 117 Mo. 138; Lingo v. Burford, 112 Mo. 149; Gray v. Bowles, 74 Mo. 419; 1 Black on Judgments, sec. 261; Myers v. McRay, 114 Mo. 377; Adams v. Cowles, 95 Mo. 503; Duffy v. Joyall, 5 Mo.App. 579; State ex rel. v. Donegan, 12 Mo.App. 190; Knoll v. Woelken, 13 Mo.App. 275; Myers v. Miller, 55 Mo.App. 338; State v. Wear, 145 Mo. 162; Reed Bros. v. Nicholson, 158 Mo. 624. (5) The judgment was not subject to collateral attack. Castleman v. Relfe, 50 Mo. 583; Shelbina Hotel Assn. v. Parker, 58 Mo. 327; Perryman v. State, 8 Mo. 208; Bernecker v. Miller, 44 Mo. 102; McDonald v. Frost, 99 Mo. 44; State ex rel. v. Donegan, 83 Mo. 374; Yates v. Johnson, 87 Mo. 213; Burke v. Kansas City, 118 Mo. 309; Howard v. State, 47 Ark. 431; Leonard v. Sparks, 117 Mo. 103; Akers v. Hobbs, 105 Mo. 127; Grover v. Grover, 30 Mo. 400; 1 Black on Judgments, secs. 83 and 87; Leonard v. Sparks, supra; Thompson v. Railroad, 110 Mo. 151; Howland v. Railroad, 134 Mo. 479; Black on Judgments, 261, 263 and 245; Fears v. Riley, 148 Mo. 49; Lovett v. Russell, supra; Seymour v. Newman, 77 Mo.App. 578; Wonderly v. Lafayette Co., 150 Mo. 635; McKenzie v. Donnell, 151 Mo. 450; Cox v. Boyce, 152 Mo. 576; Shea v. Shea, 154 Mo. 599; State v. Brandhorst, 156 Mo. 457; State v. McKee, 150 Mo. 233.

Chase & Noble for respondent.

Filed argument reviewing appellants' authorities.

OPINION

SMITH, P. J.

--On December 14, 1899, the plaintiff entered into a written contract with one S. F. Scott, trustee, whereby the former sold and assigned to the latter 144 shares of stock in the defendant, the Choctaw Coal and Mining Company, which company we shall hereafter designate as the "coal company," for $ 2,500, of which amount $ 1,000 was then paid, and the remaining amount of $ 1,500 was to be paid on or before January 1, 1900. There was a provision in the contract to the effect that "94 shares of said stock had been levied on under an execution in favor of Herman Gedosch against W. H. Caffery; and if said process fixes a lien upon said stock, then the amount of such lien shall be deducted from said $ 1,500."

Afterwards on December 28, 1899, the said Scott, trustee, paid the plaintiff the $ 1,500 referred to in the contract of December 14, 1899, less $ 250 paid to Frank Hagerman to be held and disposed of by him in accordance with a provision in that contract. This action was brought to recover the said sum of two hundred and fifty dollars placed in Mr. Hagerman's hands. The plaintiff had judgment in the circuit court and the defendants appealed.

I. The defendants contend that the judgment ought to be reversed because the instruction given for the plaintiff authorized a verdict by the jury on a cause of action not alleged in the petition. This instruction told the jury that if they believed from the evidence that the debt or subject of the action, sued on by Herman Gedosch in the Indian Territory, was contracted by the plaintiff, and the Choctaw Coal & Mining Company agreed to assume and did assume such debt, and that the said Choctaw Coal & Mining Company received the benefit and profits of such contract and that while said action of the said Herman Gedosch was pending and undetermined in the court of said Indian Territory, the officers of the said Choctaw Coal and Mining Company agreed with the plaintiff that they would appear for him and protect his interests and make the proper defense in the said suit between Herman Gedosch, Choctaw Coal and Mining Company and plaintiff, and the plaintiff believed and relied upon such promise and agreement, and that the officers, instead of making such defense and protecting the interests of said plaintiff in said cause, then pending in the Indian Territory, entered into an agreement with Tom W. Neal, attorney for the said Herman Gedosch in the said cause then pending in the Indian Territory, by which judgment was taken against the said plaintiff by default, and further entered into an agreement with the said Tom W. Neal, by which said officers of the said Choctaw Coal and Mining Company were to assist and did assist the said Tom W. Neal in having execution issued upon the judgment thus obtained against the said plaintiff on the action of said Herman Gedosch, and levied upon 94 shares of capital stock of the said Choctaw Coal and Mining Company owned by plaintiff, and further assisted the said Tom W. Neal in the sale of such stock under and by virtue of such execution, and that the said Tom W. Neal, at such execution sale, purchased the said 94 shares of stock owned by this plaintiff, aforesaid, and that the officers of the said Choctaw Coal and Mining Company, in order to carry out the agreement made and entered into with the said Tom W. Neal, in and about the premises, purchased of said Tom W. Neal the said 94 shares of stock, then such sale and purchase of said stock by the officers of the said Choctaw Coal and Mining Company amounts in law to a fraud upon the said plaintiff, and your verdict should be for the plaintiff in such sum as you may believe from the evidence he is entitled to, not to exceed the sum of two hundred and fifty dollars.

The petition alleged that prior to the commencement of the cause wherein Herman Gedosch was plaintiff and W. H. Caffery and the Choctaw Coal and Mining Company were defendants, he, "the plaintiff, was agent and general manager of the Choctaw Coal and Mining Company, and as such entered into a contract with the said Herman Gedosch for such company, whereby plaintiff, for the Choctaw Coal and Mining Company purchased a lease for certain coal lands in the Indian Territory and entered into a contract of employment with the said Herman Gedosch for the said Choctaw Coal and Mining Company, and that said company had full knowledge of said contract and fully ratified and confirmed the same and received the proceeds and benefits therefrom, and was wholly liable to the said Herman Gedosch for all of the conditions and considerations of such contract. This plaintiff alleges the fact to be that he, the plaintiff, was in no way personally responsible or liable under the contract made with the said Herman Gedosch having acted simply as agent for defendant and within the scope of his authority as such, and that said defendant, the Choctaw Coal and Mining Company, well knew such facts."

It is thus seen that there is a substantial and radical departure in the theory of the instruction from that of the petition. Under the contract as pleaded, the plaintiff, Caffery, was in no way liable thereon to Gedosch, while under that embraced in the hypotheses of the instruction he was, if there was no release by Gedosch, which there seems not to have been. If the contract between Gedosch and plaintiff was for the coal company, as alleged in the petition, then it was not that of Gedosch with plaintiff, and there could have been no assumption by the coal company of an obligation which was primarily and originally its own. According to the theory of the instruction, the coal company, by the assumption of the obligation of plaintiff to Gedosch, became the principal and the plaintiff the surety therein and a submission of the case on that theory, perhaps would have been well enough, had it been justified by the allegation of fact contained in the petition. It is clear the instruction was framed without regard to the allegation of the petition hereinbefore quoted, and as the theory thereof is so materially variant from the former it must, in view of the precedents in this State, be disapproved. Chitty v. Railway, 148 Mo. 64; Woods v. Campbell, 110 Mo. 572, 19 S.W. 813; Brown v. Railway, 101 Mo. 484; Railway v. Railway, 118 Mo. 599; Smith v. Railway, 108 Mo. 243. A court can not by an instruction change the issues made by the pleadings. A plaintiff can only recover on the case he states in his petition. Wright v. Fonda, 44 Mo.App. 634, and cases there cited; Jacquin v. Cable Co., 57 Mo.App. 320.

As the cause will probably be again tried it may not be amiss to state that the well-recognized rule in this State is, that when it appears from the whole record of a court that it had no jurisdiction over the person or subject-matter, the judgment is void and will be so treated in a collateral proceeding. Wyeth v. Lang, 54 Mo.App. 147, and ...