Fox v. Pullman Palace Car Co.

• Decision Date: 24 June 1884
• Citation: 16 Mo.App. 122
• Parties: W. H. FOX, Respondent v. PULLMAN PALACE CAR COMPANY, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 122

W. H. FOX, Respondent

v.PULLMAN PALACE CAR COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 24, 1884.

APPEAL from the St. Louis Circuit Court, BARCLAY, J.

Affirmed.

HENRY HITCHCOCK, for the appellant: The plaintiff can not recover on a case other than that made by the pleadings.-- Dougherty v. Matthews, 35 Mo. 528; Faulkner v. Faulkner, 73 Mo. 327; Waldheier v. Railroad, 71 Mo. 514.

DAVID MURPHY, for the respondent: The instrument set out in the defendant's answer was executed by both parties, and the court properly refused to dismiss for failure to file it.-- Bowling v. Hax, 55 Mo. 446.

THOMPSON, J., delivered the opinion of the court.

The petition demands the sum of $100 with interest, for “money had and received of plaintiff for the use and behoof of plaintiff.” The answer denies that the defendant ever received any money of plaintiff for the use and behoof of plaintiff, except in the manner and under the conditions set forth in its counter-claim therein stated. It further avers that an agreement in writing was executed by the plaintiff, and was also executed by the defendant, by its agent thereto authorized, which agreement is in the following terms:--

“Whereas, W. H. Fox, party of the first part, has made application to Pullman's Palace Car Company, party of the second part, to be appointed and employed as conductor upon their coaches: therefore to guarantee and protect said company from any loss, by reason of any neglect, carelessness, dishonesty, dereliction of duty of any kind on his part in the course of said employment, the party of the first part has deposited with said company the sum of one hundred dollars, to be subject to and disposed of pursuant to the conditions of this agreement; and upon such deposit, and his execution of this agreement, said company have agreed to appoint him a conductor upon their coaches, and to continue him in their employment during their pleasure and no longer, and to pay him for his services, as such conductor, the compensation which they shall agree upon.

The said party of the first part promises and agrees, well, honestly and faithfully to perform the duties of a conductor for the said Pullman's Palace Car Company, so long as he shall be continued in that employment, and to obey and fully comply with all rules and regulations now existing, as well as those which may, from time to time, be prescribed by the company for the conductors on said coaches, and that he will well and truly pay to the said company the fare of each and every passenger who shall ride in any coach on which he shall for the time be conductor, except those only who may exhibit a legal and proper ticket or ‘free pass,’ signed by a proper officer of the company; and he further agrees, that if, by reason of any neglect, carelessness, dishonesty, misconduct, disobedience, unfaithfulness, incompetency, or dereliction in duty of any kind on his part, in his said employment or duty of conductor, or any default on his part to collect or return to the company the full amount of fares accruing and of right payable to them as aforesaid, or if the said company shall suffer any loss or damage, or shall not receive in full the fares of all passengers riding in the coach or coaches of which the party of the first part shall be conductor, then the said company shall be authorized to retain so much of the sum of one hundred dollars so deposited with them, to and for their own use, and as their liquidated damages, as may be necessary to make good any such loss or damage as aforesaid.

And the party of the first part hereby expressly agrees that each and every such item of loss or damage, in whatsoever way the same may arise, including such as may arise by reason of the non-payment by him of fares, as above agreed, to the said company, shall be decided and adjusted by the president or superintendent of said company.

And the said company agree, that in the case of the discharge by them, at any time, of the said party of the first part, from his said employment as conductor, or upon his resignation of such employment (without right of retention of the same, as aforesaid, on their part, under this agreement), they will repay to him, on his written application therefor to the president of the company, and on giving his receipt therefor, the said sum of one hundred dollars, with interest at the rate of seven per cent per annum from date of deposit.

In witness whereof, said party of the first part hath hereunto subscribed his name, and the said Pullman's Palace Car Company have caused these presents to be subscribed by their president, this twenty-sixth day of August, one thousand eight hundred and eighty-one.

Signed and delivered in the presence of

(Signed)

W. H. FOX,

[SEAL.]

(Signed)

PULLMAN PALACE CAR CO.,

[SEAL.]

By L. M. JOHNSON.

100 Rec'd. W. A. L.”

The answer further avers that plaintiff has failed to perform the contract on his part, in that two certain sums of $14.50 and $7.00, respectively, received by plaintiff from passengers on the car of which plaintiff was conductor, were not paid over or accounted for to the defendant, as was required by the terms of the said agreement. Defendant prays judgment on its counter-claim for the sum of $21.50.

The plaintiff's reply makes no general denial of the new matters set up in the answer, but denies specifically that he collected the fares, as charged, and appropriated the same to his own use. To this is added a general denial of any right in the defendant to recover on its counter-claim.

It thus appears, that on the face of the pleadings, it is admitted that the contract was duly executed by both parties, and that the only money ever received by the defendant for the use of the plaintiff was that which he deposited with the defendant under the terms of the contract.

Upon the case as thus presented, the first question is, whether the plaintiff can recover anything under his petition. A general rule of pleading is that the party who seeks to enforce a right arising upon a contract must set up in his pleadings the contract and aver performance of the same on his part. I have not the slightest doubt that our code of procedure, properly interpreted, exacts a rigid adherence to this rule; for a fundamental idea of the reformed codes of procedure is that the pleader must apprise the opposite party in distinct terms of his ground of action or defence. A petition which merely alleges that the defendant is indebted to the plaintiff in a given sum of “money had and received of plaintiff for the use and behoof of plaintiff,” does not do this, but conceals and covers up the real cause of action, if any there be. In a recent case we held that such a statement in an action commenced before a justice of the peace, which did not show from whom, when, where or how the money was had and received, was not good.

The judges who were called upon to interpret our code of procedure while yet it was new to the profession, seemed unable to appreciate fully the spirit in which it was framed, and subjected it, in some respects, to an unfriendly interpretation, which resulted in preserving some of the abuses of the former system which the code was intended to eradicate. One of these abuses was the rule which allowed a plaintiff having a right of action arising upon a contract for the recovery of a definite sum of money, to ignore the contract which gave him the right of action and merely to set up in his declaration that the defendant was indebted to him in a given sum of “money had and received by the defendant to the plaintiff's use.” But in order to make good the claim thus stated in his declaration, it was necessary for him to prove the making of the contract out of which his right of action arose, and...