Hansen v. Cirese

• Citation: 148 S.W.2d 63,235 Mo.App. 866
• Parties: HOWARD HANSEN, RESPONDENT, v. MIKE J. CIRESE AND JOSEPH C. CIRESE, DOING BUSINESS AS CO-PARTNERS, APPELLANTS
• Decision Date: 27 January 1941
• Court: Kansas Court of Appeals

148 S.W.2d 63

235 Mo.App. 866

HOWARD HANSEN, RESPONDENT, v. MIKE J. CIRESE AND JOSEPH C. CIRESE, DOING BUSINESS AS CO-PARTNERS, APPELLANTS

Court of Appeals of Missouri, Kansas City

January 27, 1941

Appeal from Circuit Court of Jackson County.--Hon. Thomas E. Walsh Special Judge.

AFFIRMED.

Judgment affirmed.

John M Langsdale and Roy W. Rucker for appellants.

(1) One may not sue upon one theory and recover upon another. This is true even though the evidence may show that plaintiff had a cause of action which was not sued upon. Cole v Armour, 154 Mo. 333, 350; Michael v. Kennedy, 166 Mo.App. 462, 466. (2) The plaintiff sued defendants as co-partners. An affidavit denying the partnership having been filed it was necessary for plaintiff to make proof thereof. This he wholly failed to do. R. S. Mo. 1929, sec. 965. (3) The evidence wholly fails to show any meeting of the minds of the parties to any agreement or contract and this being true plaintiff is not entitled to recover. Citation of authorities is unnecessary. (4) Even if plaintiff were entitled to recover the amount allowed by the Court was excessive. Citation of authorities is unnecessary.

Earle W. Frost for respondent.

(1) There was no change in theory or cause of action as alleged and as proved. Mekos v. Fricke, 159 Mo.App. 631, 637; Gunther Brothers & Co. v. Aylor, 92 Mo.App. 161, 166; McCormick v. Warman (Mo. App.), 216 S.W. 330, 331; Oaks v. Short (Mo. App.), 292 S.W. 738, 740; Beebe v. Columbia Axle Co. (Mo. App.), 117 S.W.2d 624, 632, 633; Sonnenfeld v. Rosenthal, 247 Mo. 238, 266, 267. (2) Defendants waived all question of variance by failing to object to evidence of agreement for payment of $ 500, file statutory affidavit of surprise, or make motion to elect. Sec. 817, R. S. of Mo. 1929, Annotated Statutes 1070; Ehrlich v. The Aetna Life Ins. Co., 88 Mo. 249, 257, 258; Beebe v. Columbia Axle Co. (Mo. App.), 117 S.W.2d 624, 633; Mekos v. Fricke, 159 Mo.App. 631, 636, 637; Wamsganz v. Blanke-Wenneker Candy Co. (Mo. App.), 216 S.W. 1025, 1026, 1027; Tynes v. Terrill (Mo. App.), 19 S.W.2d 505, 506; Oaks v. Short (Mo. App.), 292 S.W. 738, 740; Rumbolz v. Bennett, 86 Mo.App. 174, 177; Bammert v. Kenefick (Mo.), 261 S.W. 78, 82; Missouri Pacific R. Co. v. Clark (Mo. App.), 268 S.W. 97, 98, 99; Crowell-Spencer Lumber Co. v. Hill (Mo. App.), 242 S.W. 427, 429. (3) Proof of partnership between defendants was not required to establish liability as to both defendants where the proof showed express individual assent by each defendant to the agreement alleged to have been made with the single plaintiff, or to establish liability as to either defendant alone. Sec. 961, R. S. of Mo., 1929, Annotated Statutes 1234; Finney v. Allen, 7 Mo. 416, 419; Root Grain Co. v. Fowler (Mo. App.), 91 S.W.2d 107, 108; Crews v. Lackland, 67 Mo. 619, 621; Reifschneider v. Beck, 148 Mo.App. 725, 736-741; Seibel v. Crim (Mo. App.), 7 S.W.2d 302, 303, 304; National Cash Register Co. v. Kay (Mo. App.), 93 S.W.2d 260, 262, 263. (4) On plaintiff's positive testimony there was a complete meeting of the minds of the parties to the agreement, as alleged and proved. A jury having been waived and the cause tried before the court, no question can now be raised as to the weight or sufficiency of the evidence. Crowell-Spencer Lumber Co. v. Hill (Mo. App.), 242 S.W. 427; Fisher & Co. Real Estate Co. v. Realty Co., 159 Mo. 562, 568. (5) Under the evidence as to the express agreement to pay $ 500 and the agreement of counsel as to the theory of the case the only proper judgment was $ 500 or nothing. Whether the judgment of $ 500 rendered was reasonable or excessive is not now open to question. Knapp v. Publishers George Knapp & Co., 127 Mo. 53, 70; Farmers' Bank v. Ogden (Mo. App.), 188 S.W. 201.

OPINION

SHAIN, P. J.

--In this action, plaintiff seeks to recover upon an alleged oral contract with defendants for securing for defendants a Diesel engine.

The plaintiff alleges the contract to have been entered into between himself and defendants doing business as co-partners.

Defendants answered by general denial. Thereafter, and on May 24, 1939, same being day of trial, defendant Joseph C. Cirese, by leave of court, filed an affidavit as follows:

"Joseph C. Cirest, of lawful age, being duly sworn upon his oath states that he is one of the defendants in the above entitled cause and further states that he is not and has never been a partner of Mike J. Cirese in any manner or at any time stated in the petition herein.

"Joseph C. Cirese

"Subscribed and sworn to before me this 23rd day of May, 1939.

"My term expires Nov. 21, 1941.

"Gladys P. Kline, Notary Public."

A jury was waived and trial was before the court and after hearing before the court, the cause was taken under advisement. Thereafter, and on June 7, 1939, and in the June Term of said court, the court found issues for plaintiff for the full sum sued for, to-wit, $ 500, and entered judgment in accordance. Defendants duly appealed from said judgment.

We will continue to refer to respondent as plaintiff and to appellants as defendants.

Defendants make assignment of errors as follows:

"(1) The Court erred in making a finding and entering judgment in plaintiff's behalf because the evidence wholly failed to sustain the allegations of the petition. The law is well settled that one must recover upon the cause of action stated in the petition.

"(2) The Court erred in entering a judgment in plaintiff's behalf and against defendants because plaintiff's petition alleged that defendants were co-partners and the cause of action, if any was stated in the petition, was against the defendants as co-partners. An affidavit denying partnership having been filed it was necessary for plaintiff to make proof of the partnership, which he wholly failed to do.

"(3) The Court erred in making a finding and entering a judgment for plaintiff in the sum of $ 500.00 for the reason that there was no substantial evidence upon which to base such finding and judgment.

"(4) The Court should in no event have allowed plaintiff the sum of $ 500. Taking the most liberal view of the testimony the allowance of such a sum was unwarranted and the amount thereof was excessive."

It will be noted that assignment (4), supra, is a mere expression of opinion rather than an assignment of error.

We conclude that such opinion is eliminated by showing of stipulation shown in the record as follows:

"IT IS HEREBY STIPULATED AND AGREED by and between the above named parties, through their respective attorneys, as a part of and as an addition to the foregoing Bill of Exceptions, that at the conclusion of the introduction of all of the evidence in said cause the Court inquired of counsel, 'This is $ 500.00 or nothing, isn't it?' whereupon counsel for both parties answered in the affirmative."

Defendant urges as to the first assignment as follows:

"(1) One may not sue upon one theory and recover upon another. This is true even though the evidence may show that plaintiff had a cause of action which was not sued upon."

That one will not be permitted to sue upon one cause of action and recover upon a different cause of action has often been declared by the courts of this State. However, to the end of substantial justice, the trend of judicial opinion, in passing upon matters of departure, is to give consideration of substance as well as form.

In an early case, Cole v. Armour, 154 Mo. 333, 55 S.W. 476, it was announced that when one sues upon a special verbal contract, he must recover on such special contract although the evidence discloses a cause of action for money had and received or cause of action quantum meruit.

Under the particular special contract in issue in the above case, the reason behind the rule seems to have application. However, in reference to same, the old saying that every tub stands upon its own bottom has significance.

In an opinion by this court, Gunther Bros & Co. v. Aylor, 92 Mo.App. 161, it is held that cause of action was not changed by an amendment alleging an express contract in lieu of an implied contract. In the course of the opinion, l. c. 166, it is said:

"As the plaintiff alleged performance of their contract, the amendment from an implied contract to an express contract was not a change of the cause of action, as they could sue upon either quantum meruit or on an express contract. [Mansur v. Botts, 80 Mo. 651; Stout v. St. Louis Tribune Co., 52 Mo. 342; Williams v. Railroad, 112 Mo. 463; Moore v. Gaus, 113 Mo. 98, 20 S.W. 975.]"

The above case and others of same import are discussed in Beebe v. Columbia Axle Co., 117 S.W.2d 624.

The distinction between the issues in the above cases lies in the facts pled. In one, the suit is brought upon a specific contract for a specific amount and the plaintiff fails to sustain his action either by failing to prove that such contract was ever made or failing to prove performance of his part if special contract was made; he seeks to recover on proof of performance of service or other valuable consideration than is pled in his petition. In the other class of cases, the petition clearly states the exact consideration and performance for which recovery may be asked on plea of quantum meruit. In such case, if the contract be established by competent evidence, the fact that there is evidence on part of plaintiff as to an agreed amount is not such a departure as to defeat recovery. Especially is this so when both parties agree to submit the case on specific amount or nothing.

We hold against defendants on assignment of error (1).

As to assignment (2), the defendants urge point (2) as follows:

"(2) The plaintiff sued defendants as co-partners. An affidavit denying the partnership having been filed it was...