Clark v. Whittaker Iron Co.

• Decision Date: 25 January 1881
• Citation: 9 Mo.App. 446
• Parties: C. J. CLARK ET AL., Respondents, v. WHITTAKER IRON COMPANY, Appellant.
• Court: Missouri Court of Appeals

9 Mo.App. 446

C. J. CLARK ET AL., Respondents,

v.WHITTAKER IRON COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 25, 1881.

1. A petition which states no cause of action is not aided by verdict.

2. Each count in a petition must state a cause of action; one count is not aided by another unless reference thereto is expressly made.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Reversed and remanded.

JOHN G. CHANDLER, for the appellant.

C. M. SWITZER, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This was an action for money alleged to have been earned by the plaintiffs, as agents for the defendant, as commissions on certain sales of merchandise. There are two counts in the petition. The case was tried in the court below without a jury, and judgment was rendered for the defendant on the first count, and for the plaintiffs on the second count. The defendant alone appeals; and therefore the questions which arise depend wholly upon the second count.

The two counts are blended together in a single paragraph, and read as follows: “Plaintiffs state that they are a firm doing business in the City of St. Louis and State of Missouri, under the style of Clark & Kennett; that in May, 1878, they entered into an agreement with defendant whereby plaintiffs undertook to sell defendant's sheetiron in the city of St. Louis, and for their services defendant agreed to pay plaintiff $1 per ton upon all sales made by them. Plaintiffs state that defendant agreed to allow them to sell its iron at as low figures as those offered to any of its other agents. Plaintiffs further state that, on or about the twentieth day of May, 1878, they had commenced negotiations for a sale of five thousand bundles of defendant's sheet-iron, of one hundred and fifty pounds each, to the Excelsior Manufacturing Company of St. Louis, and were prevented from completing same by defendant permitting its Chicago agent to make said sale at ten cents per hundredweight less than plaintiffs were authorized at; that plaintiffs' commissions on said sale amounted to $350, which defendant refuses to pay, although requested so to do. Wherefore, they ask judgment for $350, with interest at six per cent from the twelfth day of June, 1878, and costs. And for their second cause of action, plaintiffs state that on or about the twelfth day of June, 1878, and during the existence of their agency for defendant, they sold Bridge, Beach & Co., of St. Louis, three thousand bundles of defendant's sheet-iron, of one hundred and fifty pounds each. but were prevented from delivering the same by the default and unwarranted acts of defendant; that plaintiffs' commissions upon said sale amounted to $210, which defendant refused to pay, although requested so to do. Wherefore, plaintiffs ask judgment for $210, with interest from June 12, 1878, and costs.”

At the commencement of the trial the defendant objected to any evidence being offered under the pleadings as they then stood. This objection the court overruled. As the judgment which is before us for review was entered under the second count only, this objection calls in question the sufficiency of that count of the petition. The writer of this opinion, speaking only for himself, is of opinion that the practice of answering a defective petition and waiting until the witnesses have been assembled for the trial, and then objecting to any evidence being offered under it for the reason that it does not state a cause of action, is one not to be favored; since it results in calling the parties and their witnesses together, not unfrequently at considerable expense, to attend a trial, only to discover that, in consequence of an objection in the nature of a general demurrer interposed at the last hour, there is really no cause to be tried. Under such an objection, if a cause of action can fairly be gleaned from the petition, it ought to be held sufficient.

But it seems clear that the second count of this petition states no cause of action whatever. The rule, both at common law and under our system of pleading, is that each count in the petition must state a good cause of action within itself ( Leabo v. Detrick, 18 Ind. 414; Day v. Vallette, 25 Ind. 42; Mason v. Weston, 29 Ind. 561; Silvers v. Railroad Co., 43 Ind. 435, 445; Durkee v. Bank, 13 Wis. 216, 222; Nelson v. Swan, 13 Johns. 483), and cannot be aided by a preceding count, unless such reference is expressly made. Crookshank v. Gray, 20 Johns. 344; Stiles v. Nokes, 7 East, 493; Hitchcock v. Munger, 15 N. H. 97; Mardis v. Shackleford, 6 Ala. 433, 436; Morrison v. Spears, 8 Ala. 93; Robinson v. Drummond, 24 Ala. 174; Curtis v. Moore, 15 Wis. 134, 137; Catlin v. Pedrick, 17 Wis. 88; Sabin v. Austin, 19 Wis. 421; Barlow v. Burns, 40 Cal. 351. The rule is the same in regard to counts in the answer. National Bank v. Green, 33 Iowa, 140. See also Maupay v. Holley, 3 Ala. 103; Dent v. Scott, 3 Har. & J. 28; Swift v. Woods, 5 Blackf. 97; Wetherill v. The Inhabitants, etc., 5 Blackf. 357; Carkin v. Jornigan, 3 Ind. 548; Denham v. Stilwell, 3 Robt. 653. The rule was somewhat liberally...