Maass v. Patterson

• Decision Date: 13 April 1949
• Docket Number: 8864.
• Parties: MAASS v. PATTERSON et al.
• Court: Montana Supreme Court

204 P.2d 1040

122 Mont. 394

MAASS v. PATTERSON et al.

No. 8864.

Supreme Court of Montana

April 13, 1949

Appeal from District Court, Fourteenth Judicial District, Wheatland County; F. V. Watts, Judge.

Suit by Karl Maass against Edwin A. Patterson and Jennie Patterson to establish and foreclose a mechanic's lien, wherein defendants filed a counterclaim. From a judgment of dismissal, the plaintiff appeals.

Judgment affirmed.

ADAIR, Chief Justice.

Suit by Karl Maass, plaintiff, against Edwin A. Patterson and Jennie Patterson, defendants, to establish and foreclose a mechanic's lien. From a judgment of dismissal plaintiff appeals.

Amended Complaint. Three causes of action are united in the amended complaint.

The first cause of action is on an alleged express contract and seeks foreclosure of a mechanic's lien filed September 24, 1941 and to recover $116.50 and interest, costs and attorney's fee.

The second cause of action is based on an implied contract and seeks the same relief prayed for in the first cause of action.

The third cause of action is to recover $46, together with interest and attorney's fee, on an implied contract and seeks foreclosure of the same mechanic's lien pleaded in the first and second causes of action.

The second cause of action alleges: I. That plaintiff is a house painter and interior decorator; II. that at the special instance and request of defendants, Edwin A. Patterson and Jennie Patterson and upon their promise to pay the reasonable value thereof, plaintiff furnished materials and performed work of the reasonable value of $166.50 in cleaning and decorating the interior of defendants' dwelling; III that the dwelling is located upon three described lots in the city of Harlowton, Montana; IV. that defendants were and are the owners of the described lands and premises; V. that the work was performed and the materials were furnished between the 13th and the 28th of June, 1941, on which latter day the work was completed; VI. that on September 24, 1941 plaintiff filed for record his claim for a lien; VII. that plaintiff paid therefor a filing fee of fifty cents; VIII. that no part of the reasonable value of said labor and materials other than $50 has been paid and that there is due and owing therefor $116.50 and interest from June 28, 1941; IX. that to institute and prosecute this action and to collect the amount due, plaintiff employed Emmet O'Sullivan, an attorney at law, and has become obligated for a reasonable attorney's fee in that behalf of $100.

The plaintiff may unite in the same complaint several causes of action belonging to only one of the various classes enumerated in section 9130, R.C.M.1935, but such causes so united 'must be separately stated and numbered.'

In the amended complaint plaintiff designated his first cause of action as 'First Count,' the second cause of action as 'Second Count' and third cause of action as 'a further and second cause of action against said defendants.'

Mr Pomeroy in his work on Code Remedies, 5th Ed., § 336 at page 516 says: 'All of the codes require that the different causes of action should be separately stated. In other words each must be set forth in a separate and distinct division of the complaint or petition, in such a manner that each of these divisions might, if taken alone, be the substance of an independent action. In fact, the whole proceeding is the combining of several actions into one. At the common law these separate divisions of the declaration were termed 'counts;' and that word is still used by textwriters and judges, although, with one or two exceptions, it is not authorized by the codes; and it tends to produce confusion and misapprehension, since the common-law 'count' was substantially a very different thing from the 'cause of action' of the new procedure. In one or two States, the term 'paragraph' is used to designate these primary divisions. The difficulty in the use of this term is that it is now very generally used in England, and in most of the States where the reformed system prevails, to designate the short sub-divisions, or allegations, of facts into which each cause of action is separated, according to a mode of pleading which has become very common. The term 'cause of action' is perhaps as proper as any which can be used for the purpose. That such a separation should be made, and that each distinct cause of action should be stated in a single and independent division, so that the defendant may answer or demur to it without any confusion with others, is plainly indispensable to an orderly system of pleading, and is expressly required by all the codes; and in some of the States the courts have strictly enforced the requirement, and have thereby done much to prevent the formal presentations of the issues to be tried from falling into that confused and bungling condition which exists to so great an extent in certain of the States.' See also First Nat. Bank v. D. S. B. Johnson Land Mortg. Co., 17 S.D. 522, 97 N.W. 748; Bates v. Baumhauer, 239 Ala. 255, 194 So. 520.

Answer. Defendants filed a joint answer and counterclaim. As to the first cause of action defendants: Admit that about June 5, 1941 they entered into an agreement with plaintiff whereby he agreed to furnish the material and labor (a) for kalsomining the ceilings in the dining room, living room and hall of defendants' dwelling, (b) for painting the walls of said rooms and hall with three coats of paint, and (c) for applying a tiffany finish thereto; deny that such agreement was for washing the woodwork or for applying one coat of shellac and one coat of varnish thereon; allege that the woodwork was to be washed, sanded and that one coat of gloss varnish and one coat of flat varnish was to be applied thereto and that the work was to be done in a satisfactory workmanlike manner; admit that plaintiff entered upon the performance of his contract on or about June 13, 1941; admit the payment of $50 to plaintiff; admit that defendants' dwelling is located upon the lots described; admit that defendants were and are the owners of the described lands and premises; admit that the work was performed between the 13th and 28th of June, 1941 on which last named day said work and labor was completed and 'deny all the allegations contained' in the first cause of action 'not specifically admitted or denied in the answer.'

For their separate answers to plaintiff's second and third causes of action 'the defendants deny each and every material allegation therein contained.'

Counterclaim. For a further defense and counterclaim defendants allege: That on June 5, 1941 they entered into an agreement with plaintiff whereby the latter agreed to furnish material and labor in decorating the interior of defendants' dwelling in a satisfactory and workmanlike manner at a agreed price of $166.50; that on June 13, 1941 plaintiff entered upon the performance of his contract and partially performed same, but that he failed to perform the balance thereof and that he performed a part thereof in such a negligent and unworkmanlike manner that the woodwork is ruined to defendants' damage in the sum of $200 plus $100 as a reasonable fee for the services of defendants' attorney in defending this action.

Reply. Plaintiff did not question the sufficiency of the allegations of the answer by either motion or demurrer, but filed a reply denying each and every allegation of the affirmative defenses and of the counterclaim.

On such pleadings the parties deemed issue joined. Being ready for trial the cause was placed on the trial calendar. At the time set for trial the plaintiff was not present in court but was there represented by his counsel of record, Emmet O'Sullivan, Esq., while the defendants were present in person and represented by their counsel of record, Edwin A. Cavan, Esq.

Thereupon the following occurred:

'The Court: In Cause No. 2281, Mass. v. Patterson, is the plaintiff ready for trial?

'Mr. O' Sullivan: Yes, Your Honor.

'The Court: Is the defendant ready?

'Mr. Cavan: Yes, Your Honor.

'The Court: It appearing to the Court that the trial of cause No. 2281, Mass. v. Patterson, has come on for trial and the plaintiff and the defendants having answered that they are ready for trial, and it appearing to the Court that said cause is an equity cause and that there is a jury in attendance upon the court at the present time, it is ordered that a jury be called to try the issues in the case in an advisory capacity to the Court. Call a jury to try the cause.' Thereupon a jury of twelve qualified men and women was duly empaneled and sworn to try the cause, and counsel for plaintiff made his opening statement to the court and jury.

Following the opening statement the record shows there proceedings:

'Mr. O'Sullivan: Before proceeding further in this matter, Your Honor, the plaintiff at this time wants the record to show that he elects to stand and proceed on the second count set forth in the amended complaint, and to waive the right to stand on the first count in said amended complaint.

'The Court: All right; call your first witness.

'Mr. O' Sullivan: Your Honor, I desire to be sworn.

'The Court: Any objection to the argument of counsel after he testifies?

'Mr. Cavan: No, no objection.'

Thereupon plaintiff's counsel was duly sworn and, on interrogation by himself, testified as to the reasonable value of the services performed by him as an attorney at law in instituting and prosecuting the case on plaintiff's behalf.

At the conclusion of counsel's testimony the record shows the following proceedings had and taken:

'Mr. O'Sullivan: That is all.

'Mr. Cavan: No cross examination.

'The Court: Call your next witness.

'Mr O' Sullivan: We rest,...