Great Western Coal Co. v. Chicago G.W. Ry. Co.

• Decision Date: 30 October 1899
• Docket Number: 1,208.
• Parties: GREAT WESTERN COAL CO. v. CHICAGO G.W. RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

98 F. 274

GREAT WESTERN COAL CO. v. CHICAGO G.W. RY. CO.

No. 1,208.

United States Court of Appeals, Eighth Circuit.

October 30, 1899

Stephen S. Brown (R. A. Brown and J. E. Dolman, on the brief), for plaintiff in error.

Frank Hagerman (Daniel W. Lawler, L. C. Krauthoff, and James C Davis, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit and THAYER, Circuit Judges.

THAYER Circuit Judge.

The general question which arises upon this record is whether the trial court committed an error in compelling the Great Western Coal Company, the plaintiff below and the plaintiff in error here, to elect, in advance of the trial, upon which one of two causes of action stated in its petition it would proceed to trial. The motion to compel an election, which was made in behalf of the Chicago Great Western Railway Company the defendant below and the defendant in error here, was sustained, notwithstanding an objection which was duly interposed by the plaintiff company. Having been compelled by a peremptory order of the trial court to choose as between the two counts contained in its petition, it elected to stand on the second count, whereupon the court ordered and adjudged that the first count be dismissed at the costs of the plaintiff. A trial was afterwards had on the second count which resulted in a verdict and judgment in favor of the defendant company.

The first count of the petition was an ordinary declaration upon a contract, for a breach thereof; and the second count was likewise a declaration upon a contract, and claimed damages for a breach of the same. It will suffice to say, generally concerning the two counts of the petition, without reciting either of them at length, that in the first count the plaintiff company alleged, in substance, that it had theretofore made a contract with the defendant company to supply to the latter a large quantity of coal at certain of its coaling stations along the line of its road at an agreed price of $1.45 per ton; that it had proceeded with the execution of said contract up to a certain point, and had delivered a certain quantity of coal, when one of its coal veins gave out, or proved defective; that it thereupon entered into an agreement with another coal company, to wit, the Maple Grove Coal & Mining Company, to obtain from the latter at its mines the amount of coal which was necessary to enable it to complete its contract with the defendant company, and that it advised the defendant company of such fact, and of the terms of the arrangement; that the defendant, when so advised of the arrangement between the plaintiff and said Maple Grove Coal & Mining Company, assented to the arrangement which had been so made, and agreed to take the remainder of the coal which was due under its contract with the plaintiff from the mines of said other coal company, pursuant to the terms of the agreement between the plaintiff and said other company; but that the defendant company subsequently refused to take any coal from the mines of said Maple Grove Coal & Mining Company in fulfillment of the contract with the plaintiff, as it had agreed to do, although the plaintiff was at all times ready and willing to supply coal in the quantities needed, and strictly in accordance with the modified agreement. For the breach of the aforesaid agreement damages were demanded by the plaintiff in the sum of $65,000.

The second count of the plaintiff's petition was the same as the first up to the ad damnum clause and prayer for judgment. It was then averred, in substance, that, inasmuch as the plaintiff claimed damages from the defendant in the sum of $50,000 because of the breach of the contract described in the preceding paragraphs of the count, the two parties-- that is to say, the plaintiff and defendant-- had thereupon entered into another agreement for the purpose of compromising and settling the differences that had arisen under the first contract, by which compromise agreement it was made obligatory upon the defendant to pay to the plaintiff the sum of $24,000 in installments as soon as the plaintiff had made a settlement with said Maple Grove Coal & Mining Company which would be effective to release the defendant company from all obligation on its part to take more coal from said Maple Grove Coal & Mining Company. The plaintiff next averred that with great difficulty and expense it had caused such a settlement to be made with the Maple Grove Coal & Mining Company, but that the defendant, in violation of the second or compromise agreement, had wholly failed to keep and perform the same, to the damage of the plaintiff company in the sum of $24,000, for which latter amount it demanded a judgment.

In support of the judgment below it is argued that the two counts of the petition are inconsistent, and that for that reason the motion to require an election was properly sustained. We think, however, that this view of the case is erroneous, since the facts alleged in the first count are obviously consistent with those alleged in the second, in that proof of the fasts averred in either count would in no wise disprove the facts stated in the other. The first contract may have been made and broken to the plaintiff's damage in the sum of $65,000, and thereupon the parties may have entered into the second or compromise agreement, which was likewise broken to the damage of the plaintiff in the sum of $24,000. Clearly, therefore, there is no inconsistency in matters of fact, and it is such an inconsistency-- that is to say, where the proof of one state of facts alleged disproves the other-- which vitiates a pleading under the Code of Procedure of the state of Missouri, from whence this case comes. Nelson v. Brodhack, 44 Mo. 596; Roberts v. Railway Co., 43 Mo.App. 287, 289. It is true, no doubt, and that point may be conceded, that the plaintiff below was not entitled to a judgment under both counts of his petition. If he succeeded in recovering a verdict on the first count, there was no basis for a recovery on the second; and if he was successful in establishing the compromise agreement alleged in the second count, then it followed that, as the parties had liquidated the damages occasioned by the breach of the first contract by mutual agreement, the recovery by the plaintiff of such liquidated damages would necessarily prevent a recovery on the first count. Do these considerations lead to the conclusion that the trial court could properly compel an election before any testimony was introduced? We think not. Under the Missouri Code of Procedure it is the established doctrine that the provision of the Code of that state which requires the plaintiff to set forth in his petition 'a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition' does not prevent a party plaintiff from stating the facts which entitle him to a single recovery in different counts, and so varying the form of the statement as to meet any possible state of proof. Brinkman v. Hunter, 73 Mo. 172, 178, 179; Lancaster v. Insurance Co., 92 Mo. 460, 467, 5 S.W. 23. No more perspicuous illustration of the rule last stated can be given than is afforded by the case first cited in support thereof. Certain telegraphic correspondence between the parties to the suit was declared upon in one count as an acceptance of a draft, and in the second count as a promise to accept. It is clear that the correspondence in question could not, in point of law, be both an acceptance and an executory agreement to accept. It was either the one or the other. Nevertheless the court held that the method of pleading was proper under the Missouri Code, and that, while there could be only one recovery or satisfaction, the court could not compel the plaintiff to elect upon which count of his petition he would proceed to trial. So, in the case in hand, the court had no right to compel the plaintiff to abandon one of its counts, and by so doing part with a possible right of recovery before any evidence had been adduced. If an election can be compelled in such cases as the one in hand, it certainly ought not to be enforced until all the evidence has been adduced; and even then we see no necessity for forcing an election, since it is always possible to submit both counts to the jury under proper instructions, advising them therein in an appropriate way that the plaintiff is entitled to but one satisfaction, and that a finding for the plaintiff on one count will necessarily compel them to find in favor of the defendant on the other. In the case at bar, and in all others of a similar character, where, by reason of the complexity of the transaction, it is permissible, as in the state of Missouri, to state a single cause of action in different ways to meet the proof, the practice last suggested is, in our judgment, the proper procedure.

It was suggested in the course of the oral argument, as we understood, that, although the plaintiff company had been compelled to abandon the first count of its petition, and submit to a judgment dismissing that count, yet the cause of action stated in that count was not barred by the adverse judgment subsequently rendered on the second count, and that the plaintiff was still at liberty to sue on the count which he had been forced to dismiss. If this...