Indiana Truck Co. v. Standard Acc. Ins. Co.

Decision Date07 January 1936
PartiesINDIANA TRUCK COMPANY, A CORPORATION, (PLAINTIFF) RESPONDENT, v. STANDARD ACCIDENT INSURANCE COMPANY, A CORPORATION, (DEFENDANT) APPELLANT
CourtMissouri Court of Appeals

Appeal from Circuit Court of St. Louis County.--Hon. Robt. W McElhinney, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

J. D Leritz, A. E. L. Gardner and Merritt U. Hayden for appellant.

(1) The purported assignments from Vinita Construction Company to Emory were wholly void, as against the prior and superior equities of appellant. Prairie State Bank v. United States, 164 U.S. 227, 17 S.Ct. 142, 41 L.Ed. 412; Henningsen v. U. S. Fidelity & Guaranty Co., 208 U.S. 404, 28 S.Ct. 389, 52 L.Ed. 547; Hardaway v National Surety Co., 211 U.S. 552, 29 S.Ct. 202, 53 L.Ed. 331; Southern Surety Co. v. Holden Land & L. Co., 14 F.2d 411; Exchange State Bank v. Federal Surety Co., 28 F.2d 485; Maryland Casualty Co. v. Dulaney Lumber Co., 23 F.2d 378; In re Shelly, 242 F. 252; First National Bank of Seattle v. City Trust Co., 114 F. 529; Duplan Sill Co. v. Spencer, 115 F. 689; American Surety Co. v. Lewis State Bank, 58 F.2d 559; Lacy v. Maryland Casualty Co., 32 F.2d 48; Lacy v. Maryland Casualty Co., 46 F.2d 410; First National Bank of Winfield v. Fidelity & Deposit Co., 65 F.2d 959; State ex rel. Southern Surety Co. v. Schlesinger, 114 Ohio St. 323, 151 N.E. 177, 45 A. L. R. 371; Illinois Surety Co. v. Mitchell, 177 Ky. 367, 197 S.W. 844, L.R.A. 1918A 931; County of Wasco v. Insurance Co., 88 Ore. 465, 172 P. 126, L.R.A. 1918D 656; City of Detroit v. Fidelity & Deposit Co., 240 Mich. 213, 215 N.W. 394; Fidelity & Casualty Co. v. Livingston, 234 Mich. 375; Labbe v. Bernard, 196 Mass. 551, 82 N.E. 688, 14 L.R.A. (N. S.) 457; Duncan v. Clary, 254 P. Rep. 386 (Kan.); Wilds v. Board of Education, 227 N.Y. 211, 125 N.E. 89; Scarsdale National Bank & Trust Company v. United States Fidelity & Guaranty Company, 264 N.Y. 159, 190 N.E. 330; Canton Exchange Bank v. Yazoo County, 144 Miss. 579, 109 So. 1; 21 R. C. L., sec. 149, pp. 1113-14. (2) These attempted assignments from Emory to respondent were further void for the following reasons: (1) They were not approved by appellant, as required by the contracts. (2) They were not filed with the County Engineer, as required by the contracts. (3) The Vinita Construction Company never began, never performed, and finally abandoned the work which it contracted to perform, for which reason it never became entitled to any payments from the county. R. S. Mo. 1929, sec. 2959; 5 Corpus Juris, secs. 149, 150, pp. 961, 962; United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, 109 S.W. 567; Securities Investment Co. v. International Shoe Co., 5 S.W.2d 681. (3) Respondent, being a foreign corporation, and there being no proof that it was ever authorized, or licensed, to transact business in Missouri, any business attempted to be transacted, or contract entered into by it was wholly void. Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404; United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, 109 S.W. 567. (3) The facts, established by the evidence, do not present a situation for which an action for money had and received is the appropriate remedy. 41 C. J., p. 28; 41 C. J., pp. 33, 45, secs. 9, 32; Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527; Third National Bank v. St. Charles Savings Bank, 244 Mo. 554, 149 S.W. 495; Richardson v. Drug Co., 92 Mo.App. 515, l. c. 521; Crigler v. Duncan, 121 Mo.App. 381; Early v. Railroad Co., 167 Mo.App. 252, 149 S.W. 1170; St. Louis Sanitary Co. v. Reed, 179 Mo.App. 164, 161 S.W. 315; Ford-Davis Mfg. Co. v. Maggee, 233 S.W. 267. (4) The giving of instructions Nos. 1, 2 and 3, and each of them, at the instance of respondent, was error warranting a reversal of this judgment. Each of these instructions was beyond the scope of the pleadings and was broader than the evidence. Each of them submitted incorrect principles of law, even under respondent's theory. Hall v. Coal & Coke Co., 260 Mo. 351, 168 S.W. 927; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; 195 S.W. 722; State ex rel. Long v. Ellison, 272 Mo. 902.

Wm. J. Becker for respondent.

BENNICK, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

BENNICK, C.

--This action, which grows out of a controversy over the payment for certain highway construction work in St. Louis County, proceeds upon the theory of money had and received. The case has to do with the question of the validity of certain assignments made by the principal contractor to a subcontractor on the job and by him in turn made over to plaintiff, the same relating to funds alleged by plaintiff to have been due and owing to the subcontractor's assignor from St. Louis County, but paid by the latter instead to defendant, the surety for the principal contractor, in disregard of plaintiff's priorities under said assignments.

The situation is somewhat unusual in that this is the second appeal to this court in the case, although there has been but one trial of the case in the lower court. Originally, plaintiff, Indiana Truck Company, sued both Standard Accident Insurance Company, the surety on the principal contractor's bond, and St. Louis County as joint defendants. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against the insurance company, in the aggregate sum of $ 1,498.75, but in favor of the county. The insurance company thereupon filed its motion for a new trial complaining of the verdict rendered against it, while plaintiff correspondingly filed its motion for a new trial complaining of the verdict in favor of the county. The court overruled the insurance company's motion and purported to render final judgment against it in conformity with the verdict, but sustained plaintiff's motion for a new trial as against the county upon the ground, among others, that the verdict was against the weight of the evidence.

In such state of the record the insurance company applied for and was granted an appeal to this court, wherein, upon the submission of the case, its appeal was dismissed for the reason that the same has been prematurely taken, there having been no appealable judgment in the case so long as the case was not definitely disposed of as to the county which was still a party to the cause awaiting the new trial which the court had granted and from which order it had not appealed. [Indiana Truck Company v. Standard Accident Insurance Company (Mo. App.), 74 S.W.2d 486.] In the subsequent proceedings in the lower court the cause was dismissed as to the county; and the judgment against the insurance company having thereby been made final, it again took its appeal to this court, so that the case is at last brought to us under circumstances which permit us to entertain the appeal on its merits.

The material facts of the case are almost wholly uncontroverted either in the pleadings or in the evidence.

On June 21, 1927, the Vinita Construction Company entered into three separate contracts with the county, the latter acting through its duly elected and accredited representatives, whereby the construction company agreed to do, at its own proper cost and expense, all the required work on certain projects for the construction of three drives located within the territorial limits of the county at a point several miles north of the City of St. Louis, and immediately east of Riverview Gardens.

Under the terms of said contracts, which were identical save as to projects cover and the cost thereof, the county agreed to pay the construction company in cash the aggregate sum of $ 2,387, less 5% of the total and final estimate for the work, as its own proportionate share of the expense of the projects, and to cause special tax bills to be issued against the property abutting on the improvements for the balance of the cost thereof.

Pursuant to such agreement, at the completion of the work, and under circumstances which will presently appear, the county paid defendant, rather than the construction company, the aggregate cash sum of $ 1,059.14, though it would appear that in computing the final payment due on one of the projects known as Northridge Drive, defendant was underpaid to the extent of $ 424. This for the reason that whereas the county had originally agreed to pay the sum of $ 870, less 5% of the total and final estimate, towards the cost of this particular project, in the preparation of the final settlement the figure of $ 446 was used by the county highway engineer, and the sum due defendant determined accordingly. Plaintiff seems to suggest in its brief that the underpayment was due to an error on the part of the engineer, although defendant's evidence was that it accepted the smaller payment because it represented all the cash the county could allow on that particular project.

One of the provisions of the contracts was that in the event of certain described delays, defaults, or failures on the part of the contractor in the matter of the beginning, prosecution or completion of the work, the county engineer should give notice in writing to the contractor and its surety of such delay, neglect, or default, specifying the same, and if within a period of ten days thereafter, the contractor or its surety should not proceed in accordance therewith, then upon report of such delay by the engineer the county court should have full power and authority, without violating the contracts, to take the prosecution of the work out of the hands of the contractor, to appropriate or use certain of its equipment and materials, and to enter into an agreement for the completion of the contracts, all costs and charges to be deducted from moneys due the...

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2 cases
  • In re Sturdivant Bank
    • United States
    • Missouri Court of Appeals
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  • Propst v. Sheppard
    • United States
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    ... ... Kidder, 344 Mo. 795, 129 S.W.2d 857; Indiana Truck Co. v. Standard Accident Ins. Co., 232 Mo.App. 63, 89 ... ...

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