Garnett & Allen Paper Co. v. Midland Pub. Co.

• Decision Date: 04 April 1911
• Citation: 156 Mo. App. 187,136 S.W. 736
• Court: Missouri Court of Appeals
• Parties: GARNETT & ALLEN PAPER CO. v. MIDLAND PUB. CO.

136 S.W. 736

156 Mo. App. 187

GARNETT & ALLEN PAPER CO. v. MIDLAND PUB. CO.

St. Louis Court of Appeals. Missouri.

April 4, 1911.

Rehearing Denied May 2, 1911.

1. APPEAL AND ERROR (§ 298) — QUESTIONS REVIEWABLE—MOTION IN ARREST OF JUDGMENT.

A motion "for new trial and in arrest of judgment," which is directed solely at alleged errors in the record proper, is merely a motion

in arrest of judgment, and it does not reach matters of exception.

2. APPEAL AND ERROR (§ 285) — QUESTIONS REVIEWABLE—MOTION FOR NEW TRIAL—EXCEPTIONS.

The overruling of a motion to make a pleading more definite is not subject to review on appeal without a motion for new trial and exception saved to its denial.

3. APPEAL AND ERROR (§ 518)—RECORD—EXHIBITS ATTACHED TO PLEADINGS.

An exhibit attached to a pleading, though not a part thereof in passing on a demurrer thereto, is, under Rev. St. 1909, § 1832, a part of the record proper on appeal.

4. ACTION (§ 28)—WAIVER OF TORT.

A buyer of printing paper who, when sued for the price thereof, sets up a counterclaim averring a purchase of paper, a payment to the seller of sums for which the buyer was not indebted, which sums were paid under a fraudulent mode of business and which sums were had and received by the seller to the use of the buyer, and that, under the seller's system, the buyer made overpayments based on excess in weights, and that such overpayments were made prior to the seller's action, thereby waives the seller's tort, and demands judgment for money had and received within the rule that, where one charges another with having and receiving money to the former's use, the law imposes an obligation to repay.

5. SET-OFF AND COUNTERCLAIM (§§ 29, 34)—SAME TRANSACTION—CLAIMS ON CONTRACT.

The counterclaim states a cause of action arising either out of the transaction set forth in the seller's petition for the price and connected with the subject of the action, or out of contract and existing at the commencement of the seller's action, and is available under Rev. St. 1909, § 1807, allowing a counterclaim in either of such cases.

6. PLEADING (§§ 192, 367)—INDEFINITENESS —REMEDY.

Where a pleading is indefinite, the remedy is by motion to make it more definite, and not by demurrer.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by the Garnett & Allen Paper Company against the Midland Publishing Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Crews & Cantwell, for appellant. Frank K. Ryan, for respondent.

REYNOLDS, P. J.

Plaintiff below, appellant here, on December 14, 1908, commenced action against defendant, the petition containing three counts, each count setting up a sale and delivery of printing paper of different brands, the sales made at different dates. In the first count the amount claimed is $740.34, with interest at six per cent. from the 15th of May, 1908; in the second count the amount claimed is $503.67, and interest at six per cent. from the 15th day of June, 1908; in the third count the amount claimed is $181.47, and interest at six per cent. from the date of demand, 15th of July, 1908.

Admitting the incorporation of the parties, the answer is a general denial. Following this a counterclaim is set up which, in substance, averred that defendant, on purchases of printing paper from plaintiff between the 2nd of January, 1905, and the 31st of March, 1908, had paid to plaintiff sundry sums of money for which it was not indebted to plaintiff "and which were paid to it under a fraudulent mode of business or system practiced by plaintiff, and such sums of money were had and received by said plaintiff to the use of defendant herein." It is further averred that under the system of plaintiff, the purchases of printing paper were uniformly invoiced at weights in excess of the true weights thereof and the amounts in money of overpayments by defendant, because of such excess in weights, were paid by plaintiff and received by defendant as aforesaid, the dates of invoices, the weights set forth in them and the true weights of said purchases, being shown by a statement filed, the aggregate amount of said excess in weights charged to be 61,500 pounds, the total amount of overpayments alleged to be $2,254.48, for which amount defendant demands judgment. The statement of account attached and referred to is dated December 31, 1907, and contains over 250 items.

At the February term of the circuit court plaintiff filed a motion to make the answer of defendant more definite and certain as to the counterclaim, it being charged that this part of the answer does not sufficiently acquaint the court or plaintiff with the ultimate facts upon which the defendant bases a legal claim for recovery, and that it is impossible to determine, from the counterclaim stated in the answer, whether the alleged facts arise out of the contracts or transactions set forth in the petition as the foundation of plaintiff's claim, or whether the counterclaim is connected with the subject of the action, or whether it arises in another cause of action arising on contract and existing at the commencement of the action herein, and because it is impossible to determine from the averment in the counterclaim whether the defendant seeks a recovery upon contract or tort. At the April term of court this motion was overruled, it being stated in the abstract that plaintiff duly excepted, filing a term bill of exceptions. At this same April term, plaintiff filed a demurrer to the answer, the demurrer assigning for cause, first, that several causes of action have been improperly united in the counterclaim; second, because the alleged counterclaim does not state facts sufficient to constitute a cause of action. The demurrer coming on to be heard at that term, was overruled, and plaintiff, electing to stand on the demurrer, refused to plead further. Whereupon, and at that term, an order or judgment was entered substantially to the effect that plaintiff's demurrer to the counterclaim was overruled and it appearing to the court from the counterclaim that plaintiff is indebted to defendant on account of overpayments as herein stated in the sum of $2,254.48, "and said plaintiff having filed herein this day declination to plead further, and to stand on said demurrer; it is, therefore, considered and adjudged by the court that final judgment be entered on said demurrer, and that the defendant recover of plaintiff the said sum of $2,254.48, and also its costs herein expended, and have execution therefor." It is set out in the abstract that "to which ruling, order and judgment of the court the plaintiff at the time duly excepted." Beyond the above there is no statement that any exception was saved to this action, the term bill of exceptions before referred to as filed, as it is set out in the abstract, merely saving exception to the action of the court in overruling the motion to make more definite and certain, nor does it appear that any motion was ever filed at any time to set this judgment aside for irregularity. It further appears by the abstract that on November 9, 1909, that is to say, at the October term of the court, that being the second term occurring after the rendition of the above judgment, "said cause came on for trial, and after evidence had been introduced by plaintiff and defendant in support of the issues in said cause and upon the oral admission of defendant's counsel and the memorandum then signed by counsel," judgment is entered as follows: "Now at this day come again the parties hereto by their respective attorneys; come also again the jurors heretofore sworn and impaneled herein; thereupon, the further trial of this cause progressed and during the progress of said trial the parties hereto agree upon a settlement on plaintiff's cause of action, and file and present to the court their stipulation which is in words and figures as follows, to wit: `Judgment on first count for plaintiff, for $708.00; on second count for plaintiff, $396.20; on third count, $175.00.' Thereupon the court doth discharge the jury aforesaid from further consideration of this cause, and it appearing to the court that heretofore, to wit, on the 14th day of May, 1909, a demurrer to defendant's answer and counterclaim was overruled and that plaintiff elected to stand on said demurrer, and that judgment was rendered in favor of defendant on its counterclaim for $2,254.48, it is ordered that final judgment be rendered herein in favor of defendant for $975.28, being the difference between the amount agreed upon by said parties on plaintiff's first, second and third counts of its petition and the amount heretofore found in favor of defendant on its counterclaim. Wherefore, it is considered and adjudged by the court that the defendant recover of the plaintiff the sum of $975.28, aforesaid, together with its costs herein expended and that execution issue therefor." At the same term and within two days after the rendition of this judgment, as it is recited in the abstract, "the following motion for new trial and in arrest of judgment filed: `Comes now the plaintiff in the above entitled cause and prays the court to arrest and set aside the judgment rendered herein on defendant's counterclaim, and for grounds thereof says:

"`1st. That the demurrer to defendant's counterclaim should have been sustained.

"`2nd. That the counterclaim does not state...