Hespos v. Winkelmeyer
| Decision Date | 19 July 1912 |
| Citation | 149 S.W. 325,166 Mo.App. 532 |
| Parties | LOUIS H. HESPOS, Appellant, v. ADOLPH E. WINKELMEYER et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.
AFFIRMED.
Judgment affirmed.
Julius T. Muench for appellant.
(1) A court of equity has jurisdiction, at the suit of those parties to a joint liability who have discharged to the obligee the whole liability, to bring in those who have not contributed their share and to require them to make contribution; and to make an amicable adjustment of the burden among the parties and settle the whole controversy in one suit. Dysart v. Crow, 170 Mo. 275. (2) The judgment rendered in the Knabner suit, with the further evidence that appellant had alone discharged the same, was sufficient to make out a prima facie case against the respondents. Dent v. King, 1 Ga. 200; Wolters v Henningson, 114 Cal. 433; Dupuy v. Johnson, 1 Bibb (Ky.) 562.
F. A. & L. A. Wind and W. H. Allen for respondents.
(1) A party cannot sue on one cause of action and recover on another. Clemens v. Yeates, 69 Mo. 623; Reed v Bott, 100 Mo. 62; Henry County v. Bank, 208 Mo. 209; Mason v. Railroad, 75 Mo.App. 1; Real Estate Co. v. Hotel Co., 202 Mo. 605. (2) While a plaintiff may have other and different relief from that prayed for, the decree which is awarded him must be warranted both by the facts stated in the petition and by the proof. Newham v. Kenton, 79 Mo. 382; Baldwin v. Whaley, 78 Mo. 186; Ross v. Ross, 81 Mo. 84. (3) Where a plaintiff specifically alleges in his petition a given state of facts, as constituting his cause of action, he can recover only upon the theory adopted in his pleading. Wernick v. Railroad, 131 Mo.App. 37; Haynor v. Excelsior Springs, 129 Mo.App. 698. (4) Whether there is a change of cause of action is determined by two tests. 1st. Whether the same evidence will support both. 2d. Whether the amount of recovery is the same. Burnham v. Tillery, 85 Mo.App. 453; Liese v. Meyer, 143 Mo. 547; Griegsby v. Martin, 169 Mo. 221; Scovill v. Glasner, 79 Mo. 449; Santer v. Leveridge, 103 Mo. 621; Holt v. Cannon, 114 Mo. 519.
--This is a suit by appellant, plaintiff, against respondents for contribution, on the ground of the joint liability of plaintiff and defendants upon a promissory note for $ 1000, judgment upon which note had been rendered in the circuit court upon a stipulation signed by the holder of the note, the plaintiff in that suit on the one side, and by appellant and respondents herein on the other side. Execution issuing on the judgment, levy was made alone upon the property of the plaintiff to pay the whole of it, which he, or someone in his behalf did, and these defendants failing to pay this plaintiff their proportionate shares, two-thirds, as he claimed, he brought this suit, as one in equity, for contribution. The petition, setting out the execution of the note by the three parties, the rendition of the judgment against them and the payment of it by plaintiff here under the execution levied against his property, prays that an adjustment of the joint liability on the judgment between plaintiff and the defendants upon the basis of an equal division between the appellant and both the respondents be had, if both are financially responsible, or between the appellant and one of the respondents, if only one of them is financially responsible.
The joint answer of the defendants, after denying the allegations of the petition, sets up that the money for which the joint note was given and upon which the judgment was rendered was really borrowed for the appellant alone and used by him for his own purposes.
A general denial by way of reply was filed to this new matter in the answer.
The cause was tried before the court as in equity. The only witness whose testimony was heard in the case was that of plaintiff himself. After making formal proof of the judgment and of the issue of the execution and satisfaction of it and introducing the note in evidence signed by plaintiff and the two defendants, plaintiff, testifying in chief, gave his version of the circumstances under which he claimed the note in question had been executed by him and the defendants. He testified, in effect, that the note was executed in contemplation of the organization of a corporation by him and defendants for the manufacture and sale of washing machines; that a contract to this effect was entered into between them, the exact terms of which are not in evidence, but that the corporation was never organized. He further testified that when the note was executed, defendants were engaged in selling these washing machines, which he was manufacturing for them; that defendants needed funds in this business and the $ 1000 represented in the note was borrowed solely for the benefit of the two defendants, Winkelmeyer and Meyer, and that he (plaintiff) was merely an accommodation maker on the note, having negotiated for the money with the lender, who required him to sign the note with the other two parties as makers. In testifying plaintiff admitted that he had himself received and paid out all of this $ 1000 raised on this note but he testified that it was done for and solely on behalf of the business of the defendants, who he testified were the sole partners in the concern doing business under the name of Sugar Plum Washing Machine Company, as partners, under that name being engaged in selling these machines, plaintiff merely manufacturing them for defendants at specified prices.
Letters were introduced and read in evidence written by plaintiff from which it appeared that he, while nominally the bookkeeper of the partnership composed of the two defendants, in point of fact controlled the action of Meyer, who under the articles of partnership between Meyer and Winkelmeyer was the salesman for the firm, these letters indicating that plaintiff exercised complete authority over Meyer as to his sales, movements, commissions, compensation, etc., but in no manner asserting any interest in the partnership by plaintiff. These facts developing, counsel for defendants suggested to the court that the proof, as made by plaintiff's own testimony, developed and showed an entirely different cause of action than that stated in the petition. They claimed that the cause of action stated in the petition was clearly one for contribution, upon the allegation as to the joint liability of the plaintiff and defendants on the note, and the alleged right of plaintiff to have the defendants contribute proportionately to the payment of the judgment on the note, while plaintiff's own testimony showed that his cause of action, if any, should be for the entire amount of the note, interest, etc., as money borrowed by him and defendants, but entirely for the benefit of defendants and paid out by him for these defendants. As appears by the abstract of the record of the proceedings at the trial, the court adopted this position taken by counsel for defendants. Quoting the language of counsel for plaintiff in his brief filed, ...
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