Coliseum Athletic Ass'n v. Dillon

• Decision Date: 15 July 1920
• Docket Number: No. 16087.,16087.
• Citation: 223 S.W. 955,204 Mo. App. 504
• Parties: COLISEUM ATHLETIC ASS'N v. DILLON et al.
• Court: Missouri Court of Appeals

223 S.W. 955

204 Mo. App. 504

COLISEUM ATHLETIC ASS'N v. DILLON et al.

No. 16087.

St. Louis Court of Appeals. Missouri.

July 15, 1920.

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

Suit by the Coliseum Athletic Association against John Dillon and others. From judgment of nonsuit, and an order to the sheriff to pay defendants or their attorneys moneys held by virtue of the writ of attachment, plaintiff appeals Judgment reversed, and cause remanded, with directions to set aside nonsuit and order to the sheriff.

D. J. O'Keefe and Geo. W. Wellman, both of St. Louis, for appellant.

Bartley & Douglass, of St. Louis, for respondents.

BARNES, C.

This suit in attachment was instituted in the circuit court of the city of St. Louis on October 16, 1914. A second amended petition was filed October 7, 1917. The answer was a general denial and a plea of another suit pending. The reply put in issue the allegations of the answer pertaining to the pendency of another suit.

The cause came on for trial before the court and a jury on June 14, 1917. As soon as plaintiff's first witness was called and sworn, an objection was made on behalf of each of the defendants to the introduction of any evidence, on the ground that the petition failed to state a cause of action against any of them. This objection was sustained. An involuntary nonsuit was entered, with leave to move to set the same aside, which motion was filed and overruled, and appeal duly taken and exceptions properly preserved.

At the succeeding term of court, upon defendants' motion, the court ordered the sheriff to pay to the defendants or their attorneys of record the moneys held by virtue of the writ of attachment. The basis upon which this order was obtained was that the plaintiff had appealed the case without giving any appeal bond. Plaintiff excepted to this order, and likewise to the overruling of a motion filed by it, to set aside the order, and appealed from the order and the overruling of its motion. Both appeals are pending here upon one transcript.

The second amended petition reads:

"Comes now plaintiff, and with leave of court first had files this, its second amended petition, and states that it is a duly incorporated association under the laws of the state of Missouri, through pro forma decree of the circuit court of the city of St. Louis.

"Plaintiff further states, and for its cause of action against the above-named defendants avers, that on or about the 13th day of October, 1914, it entered into a contract with the defendant John Dillon, wherein plaintiff employed said John Dillon to give a private boxing exhibition on or about October 14, 1914, before the members of the Coliseum Athletic Association, the plaintiff herein, in the city of St. Louis, Mo., which performance was to consist of eight rounds, of three minutes each, of scientific and skillful boxing, and for which service plaintiff agreed to pay said Dillon the sum of $750.00.

"Plaintiff further states that said Dillon represented himself to be and was a scientific and skillful performer in the art of self-defense, and contracted with plaintiff to give a scientific and skillful boxing exhibition before the members of plaintiff, and at all times to use his best efforts to give a high-class performance; that defendant Dillon further agreed that, when in the opinion of the authorized referee of said exhibition said Dillon was not honestly performing in rendering said boxing exhibition, said referee would be authorized under said contract to stop said exhibition, in which event no compensation was to be due or paid to the said Dillon.

"Plaintiff further states that on the evening of the said 14th day of October, 1914, the time when said defendant Dillon was to give said boxing exhibition, and after all of plaintiff's members were assembled to witness the said boxing exhibition, the said defendant Dillon then refused to carry out his contract or begin his performance until plaintiff would deposit the sum of $750.00, with the defendant Dillon's agents, Sam Murbarger and Robert Stolkin, and thereupon plaintiff became obliged to pay, and did pay, the said sum of $750.00, to said defendants Murbarger and Stolkin, for said defendant Dillon.

"That thereafter said defendant Dillon and one N. 0. Brown started to give a pretended boxing exhibition, but refused to give a scientific and skillful boxing exhibition, as he had contracted and agreed to give, or to give any boxing exhibition of which he represented himself to be able to give and would give before plaintiff's members.

"That because of the said defendant Dillon's failure and refusal to give a boxing exhibition in accordance with his contract with plaintiff, the referee in charge of said performance being unable to get said defendant Dillon to give a scientific and skillful boxing exhibition, or any boxing exhibition, said referee in the beginning of the third round then and there declared to said Dillon that he was not honestly performing, and that the pretended efforts of said defendant was not a boxing exhibition, and declared the pretended efforts of said Dillon no exhibition, and defendant Dillon refused to give a boxing exhibition.

"Plaintiff further states that it then demanded of said defendants, Murbarger, Dillon, and Stolkin, a return of the said sum of $750.00, paid to them as aforesaid, for the said defendant Dillon, but said defendants failed and refused to pay plaintiff said sum, or any part thereof.

"Wherefore plaintiff prays judgment against the defendants for said sum of $750 and costs of this action."

While the method of questioning the sufficiency of pleadings by objecting to the introduction of any evidence thereunder is not a court favorite (Hays v. Estate of Miller, 189 Mo. App. 72, 173 S. W. 1096), we find no occasion to add our criticism to such method in this case, an attachment suit in which the petition had been twice amended, the second one after the lapse of 2½ years. Criticism of the method does not dispose of the question before us.

The objection to the introduction of any evidence under the second amended petition constitutes a demurrer ore tenus, and, as such, does not reach the alleged defects therein to nearly the same extent, and for nearly the same purpose, as the more formal written demurrer authorized by our code of pleading. It does not reach mere uncertainty or indefiniteness of averment, or the defect of pleading legal conclusions (State ex inf. v. Arkansas Lumber Co., 260 Mo. 212, 283, 169 S. W. 145). And the allegations of the pleading will be construed most favorably to plaintiff, and every fair inference drawn therefrom in plaintiff's favor. State ex rel. v. Arkansas Lumber Co., supra; Hays v. Estate of Miller, supra.

We gather from the briefs that the demurrer ore tenus was sustained on the theory that the contract pleaded could not be made the basis of an action, and was beyond the scope of the powers granted plaintiff by its charter. The petition avers that plaintiff is a duly incorporated association under the laws of the state of Missouri, through pro forma decree of the circuit court of the city of St. Louis. This allegation appears to be sufficient to entitle it to institute this suit as "a body corporate and politic" (section 3433, R. S. Mo. 1909), coming within the purview of article 10, c. 33, R. S. Mo. 1909. It may be that by the pro forma decree it took the form of an incorporated social club, nevertheless it would appear to be a person within the meaning of the corporation laws, with the attendant rights to contract, sue, and be sued. State ex inf. v. Missouri...