County of Moniteau ex rel. Bechtle v. Lewis

• Court: Kansas Court of Appeals
• Writing for the Court: ELLISON, J.
• Citation: County of Moniteau ex rel. Bechtle v. Lewis, 100 S.W. 1107, 123 Mo.App. 673 (Kan. App. 1907)
• Decision Date: 04 March 1907
• Parties: COUNTY OF MONITEAU ex rel. P. BECHTLE, Respondent, v. T. B. LEWIS et al., Appellants

100 S.W. 1107

123 Mo.App. 673

COUNTY OF MONITEAU ex rel. P. BECHTLE, Respondent, v. T. B. LEWIS et al., Appellants

Court of Appeals of Missouri, Kansas City

March 4, 1907

Rehearing Denied 123 Mo.App. 673 at 678.

Appeal from Moniteau Circuit Court.--Hon. William H. Martin, Judge.

REVERSED.

Judgment reversed.

R. M Embry for appellants.

(1) The plaintiffs should not have not been permitted to prove issuance, and delivery and renewal of the dramship license by the record of the county court. The foundation for this was not laid by giving the required notice. State v Barnett, 110 Mo.App. 592; Thompson on Trials, secs. 770, 771. (2) Each count in the petition must be complete in itself. In this petition no count in same is complete within itself. Weber v. Squier, 51 Mo.App. 601. (3) The dramshop was not kept at the place described in the bond sued on. If this is the case, defendants, as sureties, are not liable on the bond. Brandt on Suretyship and Guaranty (2 Ed.), page 57.

John F. Gibbs and Moore & Williams for respondent.

(1) No notice to the defendants, who were the securities on the bond, to produce the license was necessary, they were not the proper custodians of the license, and there was no legal presumption that they had the license in their possession, and no evidence given of such fact, and the principal, Lewis, could not be found so as to be served with summons, and it follows that he could not be served with notice to produce the license. This is a civil and not a criminal action, and relator had the right to prove the issuing of the license by the best means available. It is an established rule that sureties are estopped to deny the facts recited in their obligation, whether true or false. Brockway v. Petted, 7 L. R. A. 740; State ex rel. v. Williams, 77 Mo. 463; Jones & Jones v. Snedecor, 3 Mo. 390; Lionberger v. Krieger, 88 Mo. 160; Brewing Co. v. Neiderweiser, 28 Mo.App. 233; Greene County ex rel. v. Wilhite, 29 Mo.App. 459. (2) The petition is sufficient, the matter of the issuance of the license to T. B. Lewis and the execution of the bond by him and his securities, were matters of inducement common to all the counts and did not require repetition. Stone v. Wendover, 2 Mo.App. 247; Bricker v. Railroad, 83 Mo. 391; Neier v. Railroad, 12 Mo.App. 35; Gas Light Co. v. St. Louis, 86 Mo. 495. But it is immaterial in this case, for the reason that defendants answered over and made no objections to the form or sufficiency of the petition. Pomeroy v. Benton, 57 Mo. 531; Grove v. Kansas City, 75 Mo. 672; Weaver v. Harlan, 48 Mo.App. 319. (3) The dramshop was kept in a building located on the lots described in the bond. The location of the building is pointed out on the plat introduced, and even if the building in which the saloon was run did extend upon part of lot 3, in block A, the recital in the bond that license had been obtained to run a saloon on lots 1 and 2, block A, is conclusive upon the securities. Lionberger v. Krieger, 88 Mo. 160; Bliss on Code Plead., 327 and 329, 352; Mize v. Glenn, 38 Mo.App. 98.

OPINION

ELLISON, J.

This action was brought against Lewis, a dramshop keeper, and the sureties on his bond for selling intoxicating liquors to the relator's minor son. The petition contained several counts. The verdict was for the relator.

A return of not found was made to the summons against Lewis, the dramshop keeper, and the case was dismissed as to him and thus left to stand against his sureties. The trial court permitted relator to prove the dramshop keeper's license by the records of the county court without having first made an effort to procure the license itself as the best evidence. There was no error in this, since defendants are estopped in the first instance to deny the license by recitals in the bond that he was duly licensed. That should be taken to establish the license prima facie. The sureties in a bond of such character are bound by the bond itself (State ex rel. v. Williams, 77 Mo. 463; Lionberger v. Krieger, 88 Mo. 160) until it should be made to appear that there was nothing upon which the bond could be based. A fact which we will show, further on, was made to appear in this case.

The different counts in the petition are based upon several distinct sales and defendant contends that they are not sufficient, since they are not complete within themselves, as stating a cause of action. The specific ground of complaint is that they do not set out the conditions of the bond. The petition first contains what we take and construe to be a part of the first count, in which Lewis is charged with the keeping of a dramshop and being duly licensed for a certain time by the county court of Moniteau county. The giving of the bond and the conditions thereof are then set out. Lewis is then properly charged with committing the offense of selling to a minor in violation of the statute and that such act constituted a breach of the bond, etc. The rule is that each separate count in a petition must be a complete statement of a cause of action within itself--that it must contain all the facts necessary to constitute the cause of action which it asserts. [Weber v. Squier, 51 Mo.App. 601; Bliss on Code Plead., sec. 121.] But this may be accomplished by appropriate reference therein to pertinent matters which have been already duly and fully stated and which need not be formally set forth at length in each successive count. [Gas Light Co. v. St. Louis, 86 Mo. 495, 498.] And that was done in this petition.

Defendant claims that the part of the petition charging that Lewis was a duly licensed dramshop keeper and setting out the conditions of the bond is no part of any count in the petition, but is merely a preliminary statement. He draws this conclusion from the manner in which the petition appears...