Conkling v. Henry Quellmalz Lumber & Mfg. Co.

• Citation: 34 S.W.2d 990,225 Mo.App. 494
• Parties: FRANK A. CONKLING, APPELLANT, v. HENRY QUELLMALZ LUMBER & MANUFACTURING COMPANY, A CORPORATION, RESPONDENT
• Decision Date: 03 February 1931
• Court: Missouri Court of Appeals

34 S.W.2d 990

225 Mo.App. 494

FRANK A. CONKLING, APPELLANT, v. HENRY QUELLMALZ LUMBER & MANUFACTURING COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, St. Louis

February 3, 1931

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Abbott Fauntleroy, Cullen & Edwards, for appellant.

(1) Defendant waived any departure in the amended petition, if such there was (which plaintiff denies), by filing an answer thereto and also by going to trial on the merits after the motion to strike out the amended petition had been overruled. Hill v. Morris, 21 Mo.App. 256; State ex rel Lunsford v. Landon, 265 S.W. 529, 304 Mo. 654; Liese v. Meyer, 143 Mo. 547; Scovill v. Glasner, 79 Mo. 449; Sauter v. Leveridge, 103 Mo. 615; Holt County v. Cannon, 114 Mo. 514; Kepley v. Park Circuit & Rlty. Co., 200 S.W. 750; Pickel Stone Co v. McClinton, 177 Mo.App. 494; Bryan v. Louisville & N. R. R., 292 Mo. 535, 542, 238 S.W. 484, 23 A. L. R. 537; Buckman v. Bankers Mortgage Co., 263 S.W. 1046; Reynolds v. Davis, 260 S.W. 994; Edmunds v. Cochrane, 226 S.W. 1007; Geo. D. Hope Lbr. Co. v. Stewart. 241 S.W. 675; Titus v. North K. C. Dev. Co., 264 Mo. 229, 240. (a) Defendant originally filed a demurrer to the petition after its first motion to strike out was overruled. This filing of a demurrer likewise constituted an abandonment of the motion to strike out and an admission that the amended petition was properly filed. Boyd v. St. Louis Brewing Association, 318 Mo. 1206, 1213, 5 S.W.2d 46. (2) Defendant's motion to strike out plaintiff's amended petition, from the sustaining of which this appeal was taken, was the second motion of the same kind--in fact, in the same language--filed against the same amended petition. Defendant's first motion to strike out this petition was overruled and no appeal was taken by defendant therefrom. Therefore the ruling on the first motion was res judicata, so that the second motion should be overruled. Spurlock v. Mo. P. Rwy. Co., 104 Mo. 658, 16 S.W. 834; Johnson v. Corley's Admr., 175 Mo.App. 223, 157 S.W. 876; Wabash R. R. v. Mirrielees, 182 Mo. 126, 81 S.W. 437; Johnson v. Latta, 84 Mo. 139; Boyd v. St. Louis Brewing Ass'n, 318 Mo. 1206, 1213. 5 S.W.2d 46. (3) The amended petition was not a departure from the original petition. The changes in the amended petition were as to the date and the amount of the account stated, and this does not constitute a change in the cause of action. Sonnenfeld v. Rosenthal, 247 Mo. 238, 152 S.W. 321; Citizens Trust Co. v. Bowers, 217 S.W. 593; Clarkson v. Lee, 133 Mo.App. 53, 113 S.W. 724; National Builders Bureau v. Waggener Store Co., 22 S.W.2d 880. (4) The statutes of Missouri and the decisions of our courts favor the liberal allowance of amendments, the rule being to allow them, the exception to refuse them. This is particularly true where, if the amendment were not allowed, plaintiff's cause of action would be barred by limitations. Turner v. Noble, 211 Mo.App. 656, 249 S.W. 103; Craig v. Metropolitan Life Ins. Co., 296 S.W. 209; Revised Statutes 1929, Sec. 1274.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The original petition, for lack of any allegation, either of a mutual agreement as to any balance resulting from the alleged statement of the account, or of a promise to pay any such balance, failed to state a cause of action of account stated. Cape Girardeau, etc., R. R. Co. v. Kimmel, 58 Mo. 83; Risinger v. Begley, 190 S.W. 418 (Sprg.) ; Ward v. Farrally, 9 Mo.App. 370; Kent v. Highleymen, 17 Mo.App. 9; Edmondson v. Harness Co., 149 Mo.App. 130. (2) The amended petition, since it for the first time, as it does, states a cause of action for account stated, was a departure from any cause of action set up in the original petition, because: (a) It required different proof; (b) The measure of damages was different; (c) A judgment on one petition would not be a bar to an action on the other. Arpe v. Mesker (Mo.), 19 S.W.2d 668 (4); Wasson v. Boland, 136 Mo.App. 622; Ross v. Land Co., 162 Mo.App. 317; Jacobs v. R. R. Co., 204 S.W. (St. L.) 954; 45 C. J., page 511, par. "Conversely" et al.; Scoville v. Glassner, 79 Mo. 449; Sims v. Field, 24 Mo.App. 557; Barr v. Lake, 147 Mo.App. 252; Macke v. Davis, 61 Mo.App. 524; Com. Elec. Sup. Co. v. Mysenberg, 85 Mo.App. 337. (3) After defendant's motion to strike out the amended petition was overruled, it filed demurrer and answer and thereby entered its appearance in the new cause of action laid in the amended petition and so waived the departure so far as concerns the right to file the amendment as matter of pleading, but it did not thereby waive the bar of the Statute of Limitations or the right to plead it. Wasson v. Boland, 136 Mo.App. 622; Sims v. Field, 24 Mo.App. 557; Lilly v. Tobine, 103 Mo. 477, 490. (4) If the amended petition introduces a new claim (here specifically defendant's promise to pay) not before asserted or "for the first time stated any cause of action at all," then the amended petition did not relate back to the commencement of the suit so as to arrest the running of the Statute of Limitations at that point. Walker v. Railroad, 193 Mo. 453; Arpe v. Mesker, 19 S.W.2d Mo. 668; Buell v. Transfer Co., 45 Mo. 562. (5) The amended petition was "a fresh suit upon a new cause of action," and since the agreed statement and promise to pay alleged therein, and on which the cause was based and occurred more than five years before the filing of the amended petition, the cause was barred by the Statute of Limitations. Arpe v. Mesker, 19 S.W.2d Mo. 667; Wasson v. Boland, 136 Mo.App. 622; 37 C. J., pp. 1074-76. (6) Since it appeared upon the face of the amended petition that the statement of the account and the promise to pay, as therein alleged, took place in 1922, more than five years before the filing of the petition, it showed complete bar of the statute and the objection was, therefore, properly taken by a motion to strike, since the motion, if sustained, disposed of the whole case and was, therefore, in its essential nature, a demurrer. Burrus v. Cook, 215 Mo. 496; Coal & Mining Co. v. Fuel Co., 317 Mo. 610; Sims v. Field, 24 Mo.App. 537; St. Charles Savings Bank v. Thompson, 223 S.W. 734. (7) It was within the discretion of the trial judge to permit defendant to renew the motion to strike and thereafter to sustain the same and the exercise by him of this discretion will not be reviewed or interfered with on appeal except in cases of palpable abuse. 42 C. J., p. 523, Sec. 190; State ex rel. v. Buckner, 207 Mo. 48; Banks v. Am. Tract. Soc., 4 Sandf. Ch. (N.Y.), 462-3. (8) The fact that the original and the amended petition both relate to the same subject-matter "does not determine whether the cause of action has been changed." Wasson v. Boland, 136 Mo.App. 622; Scoville v. Glassner, 79 Mo. 449.

BECKER, J. Haid, P. J., concurs. Nipper, J., dissents.

OPINION

BECKER, J.

This case is here on second appeal. See 20 S.W.2d 564. On January 20, 1922, plaintiff filed his petition against defendant in an action which plaintiff asserts was on an account stated, but which defendant contends was but an action upon an open account. According to this original petition, on March 1, 1920, "an account was stated" between plaintiff and defendant for the sum of $ 1982.46, for which amount judgment was prayed. An exhibit was attached to the petition and made a part thereof, which showed that the account arose out of the purchase and sale of three carloads of lumber. To this petition the defendant filed a general denial.

On February 23, 1928, by leave, plaintiff amended his original petition by interlineation, adding the allegation that "the defendant then and there promised to pay said sum." Again on February 27, 1928, by leave and over defendant's objection, plaintiff filed what is termed a new amended petition, which petition is conceded to be an action upon an account stated as of August 1, 1920, and for the sum of $ 1574.19, to which "new amended petition" there was attached an exhibit showing that the account arose out of the purchase and sale of three cars of lumber (the identical cars set up in the original petition) but omits therefrom two items of profit based on the sale of the cars of lumber, and sets out in lieu thereof a sum designated as ten per cent commission on the sale of lumber.

The defendant thereupon filed its motion to strike plaintiff's said amended petition from the files, on the grounds, among others, that the new amended petition was a departure from the original cause of action, and the substitution of a new cause of action from that stated in the original petition; and further that the proposed substitution of the amended petition substituted a new cause of action, which is barred by the Statute of Limitations. This motion to strike was overruled and defendant thereafter filed a demurrer in which the same grounds were assigned as in the motion to strike. The court in turn overruled the demurrer, to which action the defendant in due course filed a term bill of exceptions.

The defendant did not stand upon its demurrer but filed its answer in the nature of a general denial to plaintiff's amended petition, and the case was tried to the court and jury upon the issues thus framed. At the close of plaintiff's case the court, at the request of defendant, gave a peremptory instruction to find for defendant, and from the resulting judgment the plaintiff in due course appealed to this court, which, on October 24, 1929, reversed the judgment and remanded the cause, holding that plaintiff had made out a case of an account stated for the jury. [See Conkling v. Quellmalz Lbr. & Mfg. Co., 20 S.W.2d 564.]

After the...