City of St. Louis v. Clark

• Decision Date: 03 March 1931
• Docket Number: No. 21229.,21229.
• Parties: CITY OF ST. LOUIS ex rel. and to Use of SEARS et al., v. CLARK et al.
• Court: Missouri Court of Appeals

35 S.W.2d 986

CITY OF ST. LOUIS ex rel. and to Use of SEARS et al., v. CLARK et al.

No. 21229.

St. Louis Court of Appeals. Missouri.

March 3, 1931.

Motions for Rehearing and to Modify Denied March 19, 1931.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by the City of St. Louis, at the relation of and to the use of Graham C. Sears and another, against John J. Clark, doing business under the firm name and style of the John J. Clark Construction Company, and another. From judgment dismissing the petition, plaintiffs appeal, and defendants moved to dismiss the appeal.

Motions to dismiss overruled; judgment reversed and remanded, with directions.

Greensfelder & Grand and Forrest M. Hemker, all of St. Louis, for appellants.

Anderson, Gilbert & Wolfort, of St. Louis, for respondent Southern Surety Co.

E. H. Wayman, of St. Louis, for respondent Clark.

BENNICK, C.

This is an action brought by the city of St. Louis at the relation and to the use of Graham C. Sears and Herbert H. Piou, hereinafter referred to as plaintiffs, in which a recovery is sought upon a bond executed in favor of the city by defendant John J. Clark, as principal, and defendant Southern Surety Company, as surety. Plaintiffs are general contractors, as is also defendant Clark, who does business under the firm name and style of John J. Clark Construction Company. Defendant Southern Surety Company, as its name implies, is engaged in the general surety business.

On January 11, 1924, defendant Clark entered into a contract with the city, whereby he agreed, upon certain terms and conditions, to erect a building on the grounds of Koch Hospital. Among the specifications attached to and made a part of the contract was one that all doorframes, partitions, and inclosures furnished should be equal in every respect to those manufactured by the Jamestown Metal Door Company or the Dahlstrom Metallic Door Company. The significance of this particular specification will appear in the further course of the opinion.

Contemporaneously with the making of the contract, the bond in question was executed; its condition being that, in the event that Clark should faithfully and properly perform the contract according to all the terms thereof, and at the completion of the work should pay to the proper parties all amounts due for material and labor used and employed in such performance, then such obligation should be void, but otherwise it should remain in full force and effect. There was a further provision in the bond that, for any breach of the condition thereof, the same might be sued upon at the instance of any materialman, laboring man, or mechanic, in the name of the city of St. Louis, and to the use of the one at whose instance the suit was brought.

The petition alleged that defendant Clark entered into a written contract with plaintiffs, whereby the latter agreed to furnish material and labor for the installation of all the work contemplated and required under that specification in Clark's contract with the city having to do with metal doors, frames, and partitions; that plaintiffs were to be paid the sum of $16,000; that they purchased the greater part of the materials for the installation of the work from the Dahlstrom Metallic Door Company; that Clark paid the sum of $7,375 to the door company direct, which sum was credited on the account owing from Clark to plaintiffs; that he made certain additional payments direct to plaintiffs; and that there was still owing to plaintiffs the sum of $6,693.84, with interest, for which they prayed that the bond be forfeited in their favor and that execution be awarded upon the judgment on the bond for the balance due them.

The material portion of the answer of defendant Southern Surety Company was to the effect that plaintiffs were neither materialmen, laboring men, nor mechanics, and that by the terms of the bond none other might sue upon it, that they were subcontractors, and that the bond could be breached only for failure to pay all amounts due for material and labor used and employed in the performance of the work, and not for failure to pay a subcontractor the contract price.

The answer of defendant Clark was substantially the same as that of his codefendant. Coupled with it, however, were two counterclaims, the first for $2,011.77, growing out of expenditures alleged to have been made necessary by reason of the failure of plaintiffs to have completed their work within a reasonable time; and the second for $225.75, representing the reasonable value of trucks and labor furnished by Clark to plaintiffs at their special instance and request.

Replies were filed by plaintiffs in the conventional form.

In due course the case was brought to trial, and, at the close of plaintiffs' evidence, separate peremptory instructions requested by defendants were given. Thereupon plaintiffs took an involuntary nonsuit, and, following the refusal of the court to set the same aside, they prayed for and were allowed an appeal to this court.

On the very threshold of the case we are confronted with motions to dismiss the appeal, filed by defendants separately; the ground of the same being that there was no final judgment in the lower court from which an appeal might be taken.

As we stated in a preceding paragraph, demurrers to plaintiffs' evidence were sustained by the court, and, upon their being read to the jury, plaintiffs took an involuntary nonsuit. Beyond this the record does not show that anything occurred, but presumably the jury was discharged. Within four days thereafter, plaintiffs filed their motion to set the order of nonsuit aside and to grant them a new trial, and, when this was overruled, the court entered judgment as follows: "Wherefore, it is considered and adjudged by the court that plaintiffs' petition herein be and the same is hereby dismissed, at the cost of the plaintiffs, for which let execution issue."

Now defendants argue with much insistence that, inasmuch as the judgment is silent in regard to the issues presented by defendant Clark's counterclaims, it was not a final judgment within the contemplation of sections 1018, 1070, Rev. St. 1929, and therefore not appealable.

While the question is by no means free from difficulties, we have concluded that the judgment was so far a final one as to support an appeal by plaintiffs from it. Of course we are familiar with the rule relied upon by defendants, and sanctioned by statute, that there can be only one final judgment in a case, which must determine all the issues as to all the parties; and we fully appreciate the fact that such rule applies with equal force to a case wherein the issues are presented upon the plaintiff's petition and the defendant's counterclaim. Thus, while there should generally be separate findings upon the plaintiff's cause of action and upon the defendant's counterclaim, nevertheless but one final judgment should be entered, which, in usual practice, recites the respective findings, and concludes with a judgment for the party in whose favor the greater finding was made, and for the sum which represents the excess of his finding over that of his adversary. Obviously any judgment not disposing of all the issues in the case, as where it disposes of the plaintiff's cause of action but not the defendant's counterclaim, is irregular and erroneous, save for those instances, of which this would seem not to be one, where the finding upon the plaintiff's cause of action necessarily carries along with it a finding upon the defendant's counterclaim, in which event the propriety of the judgment is to be sustained, even though it makes no mention of the counterclaim.

But conceding that the procedure followed in this case was irregular, as was also the judgment rendered, does it follow that it was not a final judgment from which plaintiffs might appeal? We think not. Certainly, so far as plaintiffs' cause of action was concerned, the judgment was final and in proper form. Adjudging, as it did, that their petition be dismissed at their costs, plaintiffs were concluded by it upon their cause of action, and, if no timely appeal was taken from it, or if it was not set aside for error patent of record, it was a final adjudication of their right to sue upon the cause of action stated in their petition, and would support the issuance of an execution for costs.

It is true that the judgment made no disposition of the counterclaims, and in that respect was erroneous, but it was none the less final. When the jury were sworn to try the case, the issues for their determination arose upon the petition and the counterclaims. While the taking of the nonsuit effectively disposed of plaintiffs' cause of action, it did not of itself dispose of the counterclaims, which should have been then and there proceeded with to a final adjudication of some sort. However, it was not the duty of plaintiffs to insist upon the trial of the counterclaims, but rather that duty devolved upon defendants, and particularly upon defendant Clark.

There is not a word in the record to indicate that defendants objected to the discharge of the jury, or that they sought to press the counterclaims, and, in the absence of such a showing, we must conclude that they acquiesced in the procedure followed by the court. Had there been error of any sort committed against them, and had they appealed, they might have successfully urged the irregularity and error in the judgment for failure to have made disposition of the counterclaims. But instead it was in a sense at their invitation, and with their acquiescence, that the irregularity in the judgment came about. Such being true, there is no warrant for saying that plaintiffs had no right to appeal, for the irregular judgment which the court entered was in all events final as to their right to recover upon their cause of action. With nothing remaining to be done by the court as regards...