MacAdam v. Scudder

• Decision Date: 12 March 1895
• Citation: 30 S.W. 168,127 Mo. 345
• Parties: MacAdam, Appellant, v. Scudder, Executor
• Court: Missouri Supreme Court

30 S.W. 168

127 Mo. 345

MacAdam, Appellant, v. Scudder, Executor

Supreme Court of Missouri, First Division

March 12, 1895

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

E. T. & C. B. Allen for appellant.

(1) That defendant's ignorance, arising from the alleged indefinite and uncertain character of the petition, rendered him unable to have any idea as to what evidence he will be called upon to meet, is no reason why the pleading should be made more definite and certain by amendment. Section 2060 Revised Statutes, 1889, provides that: "No party shall be required to state evidence in his pleading or to disclose therein the means by which he intends to prove his case." See v. Cox, 16 Mo. 166; Sanders v Anderson, 21 Mo. 402; Railroad v. Kenny, 41 Mo. 273; Gates v. Watson, 54 Mo. 591; Lessing v. Sulzbacker, 35 Mo. 445; Stix v. Matthews, 63 Mo. 374; Wiggins v. Graham, 51 Mo. 17; Murphy v. Price, 48 Mo. 250; Miles v. Jones, 28 Mo. 87. (2) The provisions of section 2057, Revised Statutes, 1889, have reference to an indefiniteness and uncertainty regarding the nature of the cause of action. They do not refer to the particulars or circumstances of time and place, when the nature of the cause of action is definitely and certainly stated. Section 2057 should be considered in connection with sections 2039, 2055 and 2060. McNees v. Railroad, 22 Mo.App. 224; Christie v. Railroad, 94 Mo. 453; Weese v. Brown, 102 Mo. 303; Butts v. Phelps, 90 Mo. 670. (3) Like interpretation of a similar provision obtains in other states. 3 R. S. (N. Y.) 1875, p. 493, sec. 160; Cook v. Matheson, 33 N.Y. 497; Tilton v. Beecher, 59 N.Y. 183; McCarthy v. Railroad, 24 N.Y. 924; Brown v. Champlin, 66 N.Y. 219; O'Brien v. Ottenburg, 28 N.Y.S. 607; Agnew v. Railroad, 13 Civ. Pro. R. 25; Durant v. Railroad, 15 Civ. Pro. R. 193; 1 Bliss (N.Y.), Annotated Code, p. 660; Derringer v. Pugh, 7 Ohio Cir. Ct. R., 158; 3 Deering's Codes and Statutes of California, p. 173, sec. 430; Burns v. Cushing, 96 Cal. 669. (4) The court below erred in dismissing the cause. There remained in the petition averments not mentioned in defendant's motion, stating in the most definite and precise form all the substantive facts necessary to constitute a cause of action, as to which averments no demurrer had been filed, and no complaint made by motion. Hughes v. Railroad, 45 N. Y. Supr. 114; Norman v. Hooker, 35 Mo. 366; Taylor v. Pierson, 1 Mo.App. 39. (5) It is not necessary to state in a petition the value attached to each particular service, regarding the same subject-matter. Derringer v. Pugh, 7 Ohio Cir. Ct. R., 158; Donohue v. Pomeroy, 19 N.Y.S. 569. (6) Failure to state the precise dates of particular services can not be corrected by a motion to make pleadings more definite and certain. Such failure does not constitute indefiniteness or uncertainty as to the nature of the cause of action. Burns v. Cushing, 96 Cal. 669. (7) In states where bill of particulars can be called for, the details required by defendant's motion would not be required. Hart v. Spect, 62 Cal. 187; Fry v. Trust Co., 24 N.Y.S. 573; Richmond v. Woolfork, 22 N.Y.S. 1049; Constable v. Hardenbergh, 76 Hun, 437; Mellen v. Mellen, 17 N.Y.S. 866.

Douglas & Scudder, Rowell & Ferriss and Judson & Taussig for respondent.

(1) The court committed no error in ruling the plaintiff to make his amended petition more definite and certain by amendment. The amended petition is on an account; and the items of the account are not set forth with sufficient particularity. Account defined: Labadie v. Maguire, 6 Mo.App. 573; Glass Factory v. Reid, 5 Cow. 593; Whitwell v. Willard, 1 Met. 217; Nelson v. Commissioners, 105 Ind. 287; Haygood v. Blythe, 38 F. 76; Ring v. Jamison, 66 Mo. 428. (2) Account and bill of particulars are identical in certain cases. Dowdney v. Volkenning, 5 Jones & S. 313; Shankland v. Bartlett, 17 Civ. Proc. Rep. 24. (3) The account must show the particular items. R. S. 1889, sec. 2075; Rude v. Mitchell, 97 Mo. 273; Fullerton v. Gaylord, 7 Rob. 551; Ottman v. Griffin, 17 Civ. Proc. Rep. 184; Jones v. Illsley, 1 Allen, 273; Mathews v. Hubbard, 47 N.Y. 428. Dates must be given. Tidd's Practice, 597; Quinn v. Astor, 2 Wend. 577; Brewster v. Sackett, 1 Cow. 571, and note; Daurant v. Co., 15 C. P. R. 193; Tilton v. Beecher, 59 N.Y. 176; People v. Tweed, 5 Hun, 353, 360; McLaughlin v. Kelly, 22 Abb. (N. C.) 286; Goodwin v. Walls, 52 Ind. 268; Swain v. Roberts, 1 Moody & Rob. 452. (4) The items of the account must be stated with sufficient particularity to apprise the adverse party of just what claims he has to meet. Watkins v. Donnelly, 88 Mo. 322; McLaughlin v. Kelly, 22 Abb. (N. C.) 286; Tilton v. Beecher, 59 N.Y. 176; Dwight v. Ins. Co., 84 N.Y. 493; Cicotte v. Wayne Co., 44 Mich. 173; Stothoff v. Dunham's Ex'r, 19 N. J. L. 181. (5) The proper procedure under the statutes of this state in a case when an account or pleading is filed which is not sufficiently particular, is to move for an order requiring it to be made more definite and certain. Meyer v. Chambers, 68 Mo. 626; Baker v. Raley, 18 Mo.App. 562; Watkins v. Donnelly, 88 Mo. 322. (6) Where a motion to make more definite and certain is properly sustained and the plaintiff refuses to amend, the defendant is entitled to have the case dismissed. Hill v. Meyer, 47 Mo. 585; R. S. 1889, secs. 2057, 2066, 2211.

Brace P. J. Barclay, J., not sitting.

OPINION

Brace, P. J.

The plaintiff in this action seeks to recover the sum of $ 34,000 upon quantum meruit for services alleged to have been rendered the late Henry Shaw, deceased, between the years 1868 and the date of his death, in the year 1889. The amended petition is too long to be set out; a statement of its general features and tenor will be sufficient for the purposes of this opinion.

After reciting the donation to the city of St. Louis by the said Shaw in 1868 of Tower Grove Park, and by his will, of the "Missouri Botanical Garden," and alleging that the scheme thereof was conceived by the said Shaw prior to the year 1869, at which date he had attained the age of about seventy years, and other matters of inducement, the petition proceeds to state that: "Beginning in the year 1869 and, except in cases of temporary absence, continuously from that time, until the death of said Henry Shaw, on the twenty-fifth day of August, 1889, and at the instance and request of said Henry Shaw and in connection with the matters and affairs above stated and hereafter mentioned, plaintiff rendered to Henry Shaw services in relation, not only to personal affairs, but to matters connected with and growing out of, the grant he had made of Tower Grove Park to the city of St. Louis; and relating to matters connected with and growing out of the purpose of said Henry Shaw, as finally embodied in his will, and in relation to matters having regard to other grants and purposes which he had under consideration.

"The services rendered by the plaintiff, as aforesaid, involved frequent consultations and meetings with said Henry Shaw at his city residence and at Tower Grove; plaintiff's residence being at a distance from either place. Such consultations had to do with the attitude of public opinion toward Mr. Shaw's plans, and the means by which such public opinion could and should be directed and enlightened; with matters relating to or connected with the management of the park and garden; the effect this or that proposed city legislation would have on said plans and places; what statuary would be most appropriate for the ornamentation of Tower Grove Park; what artists should be commissioned to execute works determined upon; what persons should be invited to make addresses at the public presentation and unveiling of statues; what persons should be invited on social or other occasions to meet Mr. Shaw, whose personal influence and importance might be useful in advancing any of the matters aforesaid; also, as to specific matters of business, legal or otherwise, in the hands of plaintiff for Mr. Shaw; also as to various matters of property and investments; what shape should be given to those portions of his will pertaining to public bequests; who should be the executor under the will; who should be named as trustee under the will; and the conditions and restrictions which should be placed upon the public bequests; also as to numerous and various matters of a personal character.

"Plaintiff during the twenty years prior to the death of the said Henry Shaw occupied a very large portion of his time, when in the city, at Mr. Shaw's request, in carrying out conclusions arrived at during such consultations, in attending to matters affecting the interests of said Henry Shaw in conferring with city officials, in appearing before committees of the city assembly, in preparing articles for the press, in corres-pondence and literary work, in inviting speakers and consummating arrangements for public or semipublic gatherings at Tower Grove Park or at the residences of said Henry Shaw. Said services as above described are more specially set forth, together with the reasonable value thereof, in the following paragraphs:"

Then follow twenty-one paragraphs, the general features of all of which will be sufficiently disclosed for present purposes by the first, middle and last of said paragraphs, which are as follows:

"P 1. The services rendered by plaintiff during the period above stated, at the instance and request of said Henry Shaw, in the preparation and publication of various articles on subjects connected with the Missouri Botanical Garden and Tower Grove Park, including an article to be embraced in a descriptive catalogue of the Missouri Botanical Garden, a work Mr. Shaw had in preparation, were reasonably worth the...