La Crosse Lumber Co. v. Chicago & A. R. Co.

• Decision Date: 03 July 1917
• Docket Number: No. 15231.,15231.
• Citation: 197 Mo. App. 546,196 S.W. 1015
• Court: Missouri Court of Appeals
• Parties: LA CROSSE LUMBER CO. v. CHICAGO & A. R. CO.

196 S.W. 1015

197 Mo. App. 546

LA CROSSE LUMBER CO. v. CHICAGO & A. R. CO.

No. 15231.

St. Louis Court of Appeals. Missouri.

Argued and Submitted June 8, 1917.

Opinion Filed July 3, 1917.

Error to Louisiana Court of Common Pleas; Wm. T. Ragland, Judge.

Action by the La Crosse Lumber Company against the Chicago & Alton Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Scarritt, Scarritt, Jones & Miller and Harding, Murphy & Harris, all of Kansas City, for plaintiff in error. Robt. A. May, of Louisiana, for defendant in error.

REYNOLDS, P. J.

For cause of action the petition in this case, after averring the incorporation of plaintiff and defendant, states "that in or about the early part of the year 1913, defendant employed the Farney-Massman Construction Company, a company then engaged in the general construction business, to reconstruct for defendant a certain guide pier, break-water or ice breaker, at the city of Louisiana, Missouri, which forms a part of defendant's railroad, and adjoins its railroad bridge over which defendant's said line of railroad crosses the Mississippi River at said last named city. And that in the reconstruction of said guide pier, break-water, or ice breaker, under its employment by defendant, as aforesaid, said construction company, in the months of June, July, August and September, 1913, purchased of plaintiff, on a running account, certain material by it used, in and about the reconstruction of said guide pier, break-water, or ice breaker, amounting to two hundred forty-one and fifty-five hundredths dollars ($241.55), an itemized account of which is herewith filed, marked `Exhibit A' and made a part hereof. That the last item of said account was purchased of plaintiff, as aforesaid, on September 14, 1913, and shortly thereafter, to wit: October 1, 1913, plaintiff gave defendant due notice of said indebtedness, as required by law. Whereupon, plaintiff was about to enforce its said claim against defendant, by suit or lien, when defendant represented to plaintiff, which plaintiff charges to be true, that said construction company was then under bond to defendant for the faithful performance of its contract with defendant for reconstruction of said guide pier, break-water or ice breaker, and for the payment of all bills for material used therein, and that in addition thereto, defendant, in accordance with said contract, had reserved for such purpose, a percentage of the amount due said construction company for said reconstruction, which percentage reserved by defendant, as aforesaid, then amounted to several thousand dollars — monthly payments being made said construction company for work done the preceding month, on the certificate of the chief engineer of defendant company, said defendant deducting from each monthly estimate a certain percentage, to be held by the company for the purposes aforesaid, and to be paid said construction company or order within a certain time after the completion of said guide pier, break-water or ice breaker. And defendant then suggested to plaintiff to procure from said construction company an order on defendant, covering the amount of plaintiff's said claim, and to forward such order to defendant, and that defendant would then accept such order and in due time pay the plaintiff the amount of plaintiff's said claim, out of said funds so reserved by defendant, as aforesaid. That acting upon the representations and promises of defendant, as aforesaid, plaintiff did forego the taking of legal steps to enforce its said claim or the filing of a lien therefor against defendant as by law it then had a right to do. And that in pursuance of the suggestion and recommendation of defendant, as aforesaid, plaintiff procured said order from said construction company and in due time, to wit, on October 31, 1913, forwarded the same to defendant; that defendant thereupon received, accepted and retained said order, and so notified plaintiff of its acceptance thereof, and thereupon promised to pay plaintiff the amount therein called for; and thereby, and by reason of the matters herein alleged, plaintiff became the equitable assignee pro tanto of the said fund so reserved by defendant, due said construction company, as aforesaid, as equals the amount of plaintiff's said claim; and defendant thereby and by reason of the matters herein alleged became and is indebted to plaintiff for said materials furnished said construction company by plaintiff, as aforesaid, in the sum of two hundred forty-one and fifty-five hundredths dollars ($241.55), which amount plaintiff has demanded of defendant but which defendant has failed and refused to pay plaintiff."

Judgment is prayed for $241.55, interest and costs.

Attached to the petition is an itemized account.

Although duly summoned thirty days prior to the beginning of the term of the court to which the cause was returnable, defendant failed to appear or plead and on the second day plaintiff took judgment by default. That judgment recites that defendant made default, whereupon the petition is taken as confessed and, a jury being waived, the cause is submitted to the court upon the plaintiff's proof, and the court having heard the same finds the facts alleged in the petition to be true and assessed plaintiff's damages at $253.95. Defendant afterwards sued out a writ of error from our court.

Here it assigns as errors, first, that the petition does not state facts sufficient to constitute a cause of action against the defendant; and, second, that for that reason the court erred in entering up judgment against defendant.

It is urged by plaintiff in error that a judgment by default is not within our statute of jeofails; that even if that is not true, the petition is so fatally defective as not to be aided by that statute.

In an early case, that of Neidenberger v. Campbell et al., 11 Mo. 359, our Supreme Court held that the statute of jeofails does not reach a judgment by default. There Judge Napton, who delivered the opinion, called attention to the fact that in the revision of 1835, the Legislature had inadvertently included such judgments, referring to Revised Statutes 1835, p. 468. But as amended, and as appearing in the revision of 1845, p. 827, says Judge Napton, this was changed and the statute of jeofails, as adopted in 1845, does not embrace judgments by default. The statute as it appears at page 827 in the revision of 1845 (section 7, art. 6, c. 136), provides that when a verdict shall have been rendered in any cause, "the judgment thereon shall not be stayed, nor shall the judgment upon such verdict, or any judgment upon confession, nihil dicit, or non sum informatus, nor any judgment upon a writ of inquiry of damages, executed thereon, be reversed, impaired, or in any way affected by reason of the following imperfections, omissions, defects, matters, or things, or any of them, in the pleadings, process, proceedings, or record, namely," enumerating them. Section 2119, Revised Statutes 1909, is in substantially the same language, except that after the words, "nor any judgment upon confession nihil dicit," the language is, "or upon failure to answer," omitting the words "or non sum informatus." So it would seem that by including a...