Hodgson-Davis Grain Co. v. Hickey

• Citation: 200 S.W. 438
• Decision Date: 28 January 1918
• Docket Number: No. 12681.,12681.
• Parties: HODGSON-DAVIS GRAIN CO. v. HICKEY.
• Court: Court of Appeal of Missouri (US)

200 S.W. 438

HODGSON-DAVIS GRAIN CO. v. HICKEY.

No. 12681.

Kansas City Court of Appeals. Missouri.

January 28, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by the Hodgson-Davis Grain Company against Michael E. Hickey. From judgment for defendant on demurrer to the petition, plaintiff appeals. Affirmed.

Ross B. Gilluly, of Kansas City, for appellant. Lathrop, Morrow, Fox & Moore, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff is a corporation doing business in buying and selling grain in Kansas City, Mo. Defendant, residing in Kansas shipped from that state a carload of wheat to Kansas City with instructions in shipper's order bill of lading to notify plaintiff. Plaintiff, conceiving itself to be injured by the action of defendant in the matter of the shipment, instituted this action in a petition containing two counts, one for breach of contract and the other for fraud. Defendant demurred on the ground that one count was based on a cause of action ex contractu and the other a cause of action ex delicto. The trial court sustained the demurrer, and plaintiff refusing to plead further, judgment was entered for defendant.

We need not set forth the allegations in either count, since the face of the case is a concession that one is based on a cause of action ex contractu and the other a cause ex delicto. Plaintiff's position here, as well as in the trial court, is that since both counts, and the damages alleged in each, grew out of one transaction, and since it was entitled to but one judgment, the two could be joined in one petition under the terms of section 1795, R. S. 1909, reading as follows:

"The plaintiff may unite in the same petition several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of: First, the same transaction or transactions connected with the same subject of action; or, second, contract, express or implied; or, third, injuries, with or without force, to person and property, or either; or, fourth, injuries to character; or, fifth, claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same; or, sixth, claims to recover personal property, with or without damages, for the withholding thereof; or, seventh, claims by or against a party in some representative or fiduciary capacity, by virtue of a contract, or by operation of law. But the causes of action so united must all belong to one of these classes, and must...