Martin v. Ray County Coal Company

• Decision Date: 06 June 1921
• Citation: 232 S.W. 149,288 Mo. 241
• Parties: DAVID E. MARTIN et al., Plaintiffs in Error, v. RAY COUNTY COAL COMPANY
• Court: Missouri Supreme Court

232 S.W. 149

288 Mo. 241

DAVID E. MARTIN et al., Plaintiffs in Error, v. RAY COUNTY COAL COMPANY

Supreme Court of Missouri, First Division

June 6, 1921

Appeal from Chariton Circuit Court. -- Hon. Fred Lamb, Judge.

Reversed and remanded (with directions).

Perry S. Rader and Ed. E. Yates for plaintiffs in error.

(1) Upon the sustaining of a demurrer to a first amended petition a cause cannot be dismissed out of court; and whether or not plaintiffs' first amended petition stated a cause of action, the court erred in rendering final judgment against plaintiffs, as it did by adjudging that "the same be dismissed" and "that the defendant go hence without day and recover of the plaintiffs its costs herein expended." Secs. 1803, 1824, 1825, 1826, R. S. 1909; Comstock v. Davis, 51 Mo. 569; Wells v Moore, 49 Mo. 229; Bennett v. Bank, 61 Mo.App 297; Gordon v. Burris, 125 Mo. 39. (2) The judgment in this case is a final judgment. It concludes with the words: "Wherefore it is by the court ordered and adjudged that plaintiff take nothing by his petition herein that the same be dismissed; that the defendant go hence without day and recover of the plaintiff its costs herein expended." Those are apt words for a final judgment. Rogers v. Gosnell, 51 Mo. 466; Bowie v. Kansas City, 51 Mo. 459; Moody v. Deutsch, 85 Mo. 244; O'Connor v. Koch, 56 Mo. 262; Flanagan v. Hutchinson, 47 Mo. 237; Johnson v. United Rys., 227 Mo. 430-434. It is universally held that a judgment adjudging that "the defendant go hence without day" is a final judgment. Boggess v. Cox, 48 Mo. 279; Lisle v. Rhea, 9 Mo. 172; Jones v. Hoppie, 9 Mo. 175; Moran v. Plankington, 53 Mo. 243; Palmer v. Crane, 8 Mo. 622; Lyons & Reesman v. Rollinson, 109 Mo.App. 70-72. The circuit court had no authority under Secs. 1803, 1824 and 1825, R. S. 1909, to render a final judgment on the demurrer to the first amended petition, but it did nevertheless render a final judgment and discharged defendant out of court. (3) A demurrer is not the way to obtain the benefit of the Statute of Frauds. A contract being alleged in the petition, the Statute of Frauds is available as a defense only upon the filing of an answer. Phillips v. Hardenburg, 181 Mo. 472; Devore v. Devore, 138 Mo. 185; Mugan v. Wheeler, 241 Mo. 381; Martin v. Harrington, 174 Mo.App. 708; Moormeister v. Hannibal, 163 S.W. 928; Graff v. Foster, 67 Mo. 521; Maybee v. Moore, 90 Mo. 340; Gardner v. Armstrong, 31 Mo. 539; Mo. Real Estate Synd. v. Sims, 179 Mo. 685; Hurt v. Ford, 142 Mo. 300; Mathews v. Wallace, 104 Mo.App. 98. Since the petition in this case specifically alleges that defendant made, executed and delivered to plaintiffs its written contract, a demurrer is not the proper method to test the sufficiency of said contract. (4) The demurrer must distinctly specify the grounds of objection to the petition. Sec. 1801, R. S. 1909; McClurg v. Phillips, 49 Mo. 316; Hanson v. Neal, 215 Mo. 277; Zeideman v. Molasky, 118 Mo.App. 122. The only part of the demurrer that attempts to specify defendant's objections to the amended petition is its second paragraph. The first specification in that paragraph is that the contract is not in writing, which is a statement flatly contradicted by the petition itself, which specifically alleges that the contract sued on was reduced to writing. The second objection is not distinctly specified. The objection is that the memorandum of the contract was not "signed by the defendant party to be charged, or by any other person lawfully authorized by defendant." There is a two-fold answer to that. The first is found in the petition itself, which alleges that "the defendant, Ray County Coal Company, through the agents then in charge of and managing their business, executed and delivered to plaintiffs its written memorandum of agreement," and that made an issue of fact, which can be met only by an answer. If the objection means that "F. H. Werhies, Secy. & Treas. Ray County Coal Co.," did not have authority to enter into said contract with plaintiff, it raises a question of fact, which can be established or refuted only by evidence, and answered by a jury. (5) When a petition is attacked by a general demurrer, all the facts well pleaded and all the inferences of fact that may be fairly and reasonably drawn from the facts alleged, must be taken as true. If facts essential to a recovery are pleaded, however inartificially or defectively, a general demurrer thereto will not lie. Am. Brewing Co. v. St. Louis, 187 Mo. 381; Rodgers v. Fire Ins. Co., 186 Mo. 255; Newton v. Newton, 162 Mo. 182, 187; Ball v. City of Neosho, 109 Mo.App. 688. That part of defendant's demurrer charging that "the petition does not state sufficient facts to constitute a cause of action against the Ray County Coal Company" was a general demurrer. Am. Brewing Co. v. St. Louis, 187 Mo. 375. (6) Where the plaintiff pleads a contract the law presumes its validity, and presumes that it is in writing if the law requires it to be written, and presumes that it is such a contract as the law requires; and if defendant objects to it as void by reason of non-compliance with the Statute of Frauds, he must make the defense in his answer. Maybee v. Moore, 90 Mo. 343; Hallock v. Brier, 80 Mo.App. 336; Phillips v. Hardenburg, 181 Mo. 473; Mugan v. Wheeler, 241 Mo. 381; Martin v. Harrington, 174 Mo.App. 708; Sharkey v. McDermott, 91 Mo. 652; Cape Girardeau & Chester Railroad v. Wingerter, 124 Mo.App. 430.

George W. Crowley and Lavelock & Kirkpatrick for defendant in error.

(1) Where it is evident, from the face of the petition, that the requirements of the Statute of Frauds have not been complied with, this statute may be effectually invoked by a demurrer. 9 Ency. Plead. & Prac. pp. 708, 709; Chambers v Lecompte, 9 Mo. 577; Gardner v. Armstrong, 31 Mo. 540. (2) One of the grounds of demurrer, is that "the petition does not state facts sufficient to constitute a cause of action against the Ray County Coal Company." Under the rulings in this State, this is sufficient. Bank v. Haden, 35 Mo. 362; Bank v. Young's Admr., 35 Mo. 372; Morgan v. Bouse, 53 Mo. 221; Jordan v. Railroad, 61 Mo. 54; State v. Weeks, 77 Mo. 498; Wilson v. Polk Co., 112 Mo. 134; Hallock v. Brier, 80 Mo.App. 336; Underwood Typewriter Co. v. Realty Co., 118 Mo.App. 207. (3) The court dismissed plaintiffs' alleged cause of action, because plaintiffs voluntarily refused to avail themselves of the privileges allowed them under the statute and the law of this State. The dismissal amounted to a nonsuit. Meddis v. Wilson, 175 Mo. 132; Dean v. Railroad, 148 Mo.App. 449; Manning v. Ins. Co., 176 Mo.App. 684; Mason v. Railroad, 226 Mo. 212; Rubber Co. v. Wernicke, 166 Mo.App. 128. (4) The dismissal or nonsuit entered herein, was, in legal effect, by reason of plaintiffs' voluntary refusal to exercise the rights accorded them under the law, a voluntary dismissal. Plaintiffs should have, by an entry made of record, elected to stand on the second petition, or put into effect the rights granted them under the statute, and by declining to do this, they defaulted and confessed that their cause of action should be dismissed. Plaintiffs voluntarily forced the court to either make the entry it did make, or leave the whole matter undetermined, until it suited the convenience of plaintiffs to act herein. The dismissal was the result of the voluntary acts of plaintiffs, from which neither an appeal nor writ of error should be prosecuted. Louisiana Co. v. Mitchell, 20 Mo. 433; Gentry Co. v. Black & Stout, 32 Mo. 543; Kirby v. Bruns, 45 Mo. 236; Poe v. Dominic, 46 Mo. 113; Layton v. Riney, 33 Mo. 88; Koger v. Hayes Admr., 57 Mo. 330; Greene County Bank v. Gray, 146 Mo. 571; State v. Lubke, 15 Mo.App. 166; Schneider v. Kirkpatrick, 72 Mo.App. 106. (5) The alleged oral agreement commencing on the 1st day of May, 1916, and ending on the 31st day of July, 1918, was vague, indefinite, uncertain, without mutuality or consideration invalid and unenforcible. Sec. 2783, R. S. 1909; Jones v. Durgin, 16 Mo.App. 370; Campbell v. Handle Co., 117 Mo.App. 19; Reigart v. Coal & Coke Co., 217 Mo. 142; Hudson v. Browning, 264 Mo. 58; White Oak Coal Co. v. Ed. E. Squier Co., 219 S.W. 697. (6) The fact, if it be a fact, as it is alleged, that defendant, during the months of May, June, July, August, September and October and a part of November, 1916, delivered to plaintiffs the entire output of it mines, and that during that time plaintiffs paid therefor, did not validate or make binding the unexecuted part of said alleged contract. Campbell v. Handle Co., 117 Mo.App. 23; Jones v. Durgin, 16 Mo.App. 374; Hudson v. Browning, 264 Mo. 67; Bolt & Nut Mfg. Co. v. St. Louis Car Co., 216 Mo. 733. (7) The alleged oral agreement in plaintiffs' first amended petition, is of no binding force or effect on defendant. The defendant was not bound or obligated to mine, furnish or deliver to plaintiffs, coal in any quantity whatever. The alleged contract is without mutuality or consideration, and is therefore void. Hudson v. Browning, 264 Mo. 58; Reigart v. Coal & Coke Co., 217 Mo. 142; Campbell v. Handle Co., 117 Mo.App. 19; Jones v. Durgin, 16 Mo.App. 375; Coal Co. v. Ed. E. Squier Co., 219 S.W. 697. (8) Suppose that plaintiffs agreed to purchase of defendant, and defendant agreed to sell and deliver to plaintiffs the entire output of its mines, at a fixed price, there being no agreement requiring defendant to operate its mines, or any agreement as to what the output should be, and that thereafter the contract was partly executed; is not such a contract, as to the unexecuted portion thereof, unenforcible for uncertainty? Brown Paper Box Co. v. Mercantile Co., 190 Mo.App. 584. (9) That part of Sec. 2784, R. S. 1909, which says "unless the buyer shall accept a part of...