Lightfoot v. Wilmot

• Decision Date: 28 June 1886
• Citation: 23 Mo.App. 5
• Parties: WILLIAM LIGHTFOOT, Respondent, v. WILLIAM WILMOT ET AL., Appellants.
• Court: Kansas Court of Appeals

23 Mo.App. 5

WILLIAM LIGHTFOOT, Respondent, v. WILLIAM WILMOT ET AL., Appellants.

Court of Appeals of Missouri, Kansas City.

June 28, 1886

APPEAL from Caldwell Circuit Court, HON. JAMES M. DAVIS, Judge.

Reversed.

Statement of case by the court.

This action was originally begun before a justice of the peace, on an account, in words as follows:

" Nancy M. Perkins and Wm. Wilmott in account with Wm L. Lightfoot, Dr., Nov. 30, 1883, to 7 1/2 days work as brick mason, at $4 per day, ____________ $30.00." " " "

On the back of the account there was this endorsement: " Without recourse, I assign within account to William Lightfoot. M. A. SWITZER."

After trial in the justice's court, the defendant took an appeal to the circuit court, where the case was tried anew at the October term, 1884.

The bill of exceptions shows: " The plaintiff, to maintain the issues on his part, offered evidence tending to show that plaintiff rendered the services in his account mentioned upon the Gapen building, at the instance and request of the defendants, and that the price charged was reasonable for such services. The plaintiff sought to recover on the promises of the defendants to pay for the services, and not on the ground that they had become the owners of the Gapen building. It was then agreed between the parties (a ) that after said indebtedness had accrued to the plaintiff he filed in the office of the clerk of the circuit court of Caldwell county a verified account for work and labor done on the Gapen building, for the purpose of obtaining a mechanic's lien on lot six, block three, in Kingston, on which said Gapen building was constructed; in which account the balance claimed was the same amount claimed in this case. (b ) It is further agreed that plaintiff afterward transferred, by written assignment, said account to Milton A Switzer, and that Switzer then brought suit on said account, with other accounts, against Heiser and others, in the circuit court of Caldwell county, to enforce said lien, and that in the count on the account herein sued on, he declared in that suit that he performed the work and labor upon the building at the instance and request of the defendants in this suit. That suit was against Heiser, as administrator of Gapen, Cora R. Gapen, Nancy M. Perkins, and William Wilmott.

" Defendants Perkins and Wilmott filed their answer to that suit, the substance of which was, that they denied all the allegations of the petition except (1) that Eli Gapen owned the lot in question and was engaged in constructing a brick building thereon; (2) that Mrs. Perkins loaned him funds, and was secured by deeds of trust on said property, as in the first count of the petition described; (3) that Gapen conveyed said property to Klepper, who conveyed the same to Mrs. Gapen, as therein stated; (4) that Gapen died, and Heiser was appointed administrator of his estate. And for further answer, Mrs. Perkins said that the sums loaned Gapen were loaned and secured by deeds of trust on said property, before Gapen began the construction of the building on said lot, and that the deeds of trust were the first liens on said lot, and entitled to priority of satisfaction out of the same.

The following judgment was entered, by agreement, in that suit, to-wit:

‘ Now, on this day, comes the parties hereto, and, by agreement, the plaintiff is to have judgment for the amount of the several counts in his petition filed herein, to be declared a lien on the real estate described in the petition, and to be levied of said real estate; it being further agreed that the several deeds of trust in favor of Nancy M. Perkins on said real estate be declared and held a prior lien on said real estate to the several demands of the plaintiff, as set forth in his petition. It is further agreed between the parties thereto that there is due to the plaintiff, and he is entitled to recover, $74.34, on the first count of his petition; * * * thirty-one dollars on the eighth count; * * * and that the total amount due the plaintiff on the several counts in his petition is $452.99. It is also admitted and agreed that the several demands of the plaintiff were for work and labor performed, and material furnished, in constructing a building on lot number six, in block number three, in the town of Kingston. It is, therefore, ordered and adjudged by the court that the plaintiff recover the said sum of $452.99, and his cost herein expended; and that the same be levied of said real estate, to-wit: Lot six, in block three, in said town of Kingston, and that special fieri facias issue therefor.’

It was then agreed that the account sued on is the one mentioned in the eighth count of the petition of Switzer against Heiser et al.; the same having been reassigned by Switzer to the plaintiff."

CROSBY JOHNSON, for the appellants.

I. Where the subject-matter has been in litigation before, it will be deemed res judicata, unless the evidence precludes all hypothesis of the merits having been passed on. Baxter v. Aubrey, 41 Mich. 90; Peterkin v. Thomas, 28 Ohio St. 596. Where issue is joined so that evidence might have been introduced, the failure to introduce the evidence will not deprive it of its character of res judicata. Railroad v. Straat, 59 Mo. 351; Cromwell v. Sac. Co., 94 U.S. 351; Case v. Beauregard, 101 U.S. 688; Tutt v. Price, 7 Mo.App. 194. And the fact that the judgment is indefinite and uncertain, will not alter the effect of a judgment rendered upon it. Chouteau v. Gibson, 76 Mo. 38.

II. In the enforcement of a mechanic's lien the plaintiff is entitled to a personal judgment against contractors, as well as special judgment against the property. Sects. 3180, 3185, Rev. Stat.; Williams v. Porter, 51 Mo. 448; Hassells v. Rust, 64 Mo. 325. And the court may grant any relief consistent with the case made, and embraced in the issues, whether asked or not. Bliss on Code Pleading, sect. 161. The omission to grant any relief to which the petition showed the plaintiff was entitled was equivalent to an adjudication that he was not entitled to such relief. Freeman on Judgments, sect. 272; Caldwell v. White, 77 Mo. 421. If the allegations of Switzer's petition were true, defendants were contractors. Whittelsey's Pleading, 187.

III. The causes of action set forth in Switzer's petition (former adjudication), were merged in the judgment in his favor. Cooksey v. Railroad, 74 Mo. 477; Freeman on Judgments, sect. 215. A party will not be allowed to try his case by piecemeal. Brooks v. Ancell, 57 Mo. 178; White v. Van Houston, 51 Mo. 577; Wickersham v. Whedon, 33 Mo. 56. And a judgment by agreement has the same force and effect upon all matters in issue in the cause as other judgments. Reilly v. Hudson, 62 Mo. 383; Black v. Rogers, 75 Mo. 441; Nashville, etc., v. United States, 113 U.S. 261; Freeman on Judgments, sect. 329; Stapleton v. Dee, 132 Mass. 279. Plaintiff could claim no greater rights than Switzer.

WILLIAM A. WOOD, for the respondent.

I. Before the matter of two actions can be res judicata there must be a concurrence of four conditions: (1) Identity in the thing sued for. (2) Identity in the cause of action. (3) Identity of persons and parties to the action. (4) Identity of the quality in the person for or against whom the action is brought. 2 Bouv. Law Dic. (15 Ed.) 579; Clemens v. Murphy, 40 Mo. 121; Big. Estop. (3 Ed.) 10. These necessary elements do not appear in the case at bar, and the case introduced in evidence, by defendants, on the trial below. No one is estopped in a proceeding in rem from also recovering a personal judgment for the same matter, especially if the property charged fails to satisfy his claim, as...