Clark v. Zane

• Decision Date: 29 June 1912
• Citation: 148 S.W. 967,165 Mo.App. 505
• Parties: PAUL CLARK, Respondent, v. F. H. ZANE et al., Appellants
• Court: Missouri Court of Appeals

148 S.W. 967

165 Mo.App. 505

PAUL CLARK, Respondent, v. F. H. ZANE et al., Appellants

Court of Appeals of Missouri, Springfield

June 29, 1912

Motion for Rehearing Denied, July 9, 1912.

Appeal from Stone Circuit Court.--Hon. John T. Moore, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Shannon & Phelps for appellants.

(1) The court erred in permitting the action to be dismissed as to H M. Russell and a recovery to be had in favor of Paul Clark because the statement of plaintiffs' cause of action states a joint demand in favor of both Clark and Russell, and in such case a recovery cannot be had by one plaintiff alone. 22 Ency. Pl. & Pr. 576, 585; Davis v. Association, 63 Mo.App. 477; Timber Co. v. Railroad, 180 Mo. 463. (2) It appears that there was an entire failure of proof, and the court should have directed a verdict for the defendants. Gray v. Race, 51 Mo.App. 553; Tyler's Estate v. Giesler, 74 Mo.App. 549; Chitty v. Railroad, 148 Mo. 64; Phleger v. Weltner, 21 Mo.App. 580; Edelen v. Strong, 34 Mo.App. 287; Wesby v Bowers, 58 Mo.App. 419; Clark v. Clark, 59 Mo.App. 532; Yall v. Gillham, 187 Mo. 408; Timber Co. v. Railroad, 180 Mo. 463.

J. W. George for respondent.

OPINION

NIXON, P. J.

Paul Clark and H. M. Russell commenced this action before a justice of the peace of Stone county on the tenth day of May, 1911, on the following statement of their cause of action.

"Cape Fair, Mo., May 10, 1911.

"We, the undersigned, claim that F. H. Zane & Co., of Reeds Springs, Mo., justly owes us $ 18, for board and nailing in railroad ties during the month of March, 1911, on the James river.

PAUL CLARK,

"H. M. RUSSELL."

Plaintiffs recovered a judgment for the full amount of their claim in the justice's court, and defendants appealed. In the circuit court plaintiffs filed an amended statement of their cause of action alleging "that F. H. Zane & Company are a copartnership consisting of F. H. Zane and H. D. Baker, doing business under the firm name and style of F. H. Zane & Company," and that through their agent, Arthur Garrison, the defendants employed the plaintiffs to board the said Garrison and nail railroad ties in a raft for the purpose of having them floated down the river to their place of discharge at Branson, and that in pursuance of such employment the plaintiffs nailed in 470 ties at three cents per tie and furnished the said Garrison twenty-seven meals at twenty cents per meal. The defendants filed an answer denying under oath the alleged partnership, and denying each and every other allegation in plaintiffs' amended statement.

Plaintiffs' evidence developed the fact that there was no joint demand in favor of the plaintiffs and against the defendants. Russell on cross-examination testified: "Q. Mr. Clark had nothing to do with nailing in the 170 ties that you are suing on? A. No, sir. Q. Mr. Clark had nothing to do with boarding Mr. Garrison? A. No, sir. Q. And you had nothing to do with nailing in what ties Mr. Clark nailed in? A. No, sir. Q. And how much are you suing for, both of you together? A. For eighteen dollars. Q. And that eighteen dollars covers all your claim against Zane & Company, of you and Mr. Clark both? A. Yes, sir. Q. That covers all your claim for nailing in 170 ties and for boarding Mr. Garrison and also all your claim that they owe for the ties that Mr. Clark nailed in also? A. Yes, sir."

At the conclusion of plaintiffs' evidence in the circuit court, the court suggested that there was some question in his mind about the two plaintiffs bringing suit jointly, and thereupon the following order was made: "At the close of plaintiffs' evidence, plaintiffs dismiss the action as to Russell and proceed as to Clark," to which objection was made and exceptions saved. The plaintiff Clark obtained judgment for the sum of nine dollars from which the defendants appealed.

A cause of action, under our pleading and practice, founded on a joint obligation is entirely distinct and separate from a cause of action founded on a several obligation; and such joint obligation cannot be split up by an amendment of the petition, or by dismissing one or more of the plaintiffs, as in this case, or otherwise, so as to make several causes of action, or so as to give one of the alleged joint obligees the right to continue the suit as on a separate cause of action. [Yore v. Yore (Mo.), 144 S.W. 847, 850.]

The record in this case discloses a variance between the pleading and proof which the plaintiffs sought to remedy by dismissing the action as to one of the plaintiffs. The statute (Sec. 1846, R. S. 1909) provides: "No variance between the allegation in the pleading and the proof shall be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits; when it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, by affidavit showing in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as shall be just." Under this statute it has been held that any variance may be cured by amendment when it does not change the cause of action. [Murdoch v. Finney, 21 Mo. 138; Bennett v. McCanse, 65 Mo. 194.]

There is, however, another statute concerning variance, namely, section 2021, Revised Statutes 1909, which is as follows: "Where the allegation of the cause of action or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof. In case of such failure of proof, and a verdict of a jury or finding of the court against the party so failing, and the court is satisfied, from the proof given, that the party has a good cause of action or defense, the court may on motion of such party, set aside the verdict or finding, and grant a new trial, and permit the pleadings to be amended on such terms as may be just."

This section and section 1846 recognize a plain distinction between a variance and a...