Mason v. Summers

• Decision Date: 10 January 1887
• Citation: 24 Mo.App. 174
• Parties: JAMES C. MASON, Plaintiff in Error, v. MORDECAI SUMMERS, Defendant in Error.
• Court: Kansas Court of Appeals

24 Mo.App. 174

JAMES C. MASON, Plaintiff in Error, v. MORDECAI SUMMERS, Defendant in Error.

Court of Appeals of Missouri, Kansas City.

January 10, 1887

ERROR to Ray Circuit Court, HON. GEORGE W. DUNN, Judge.

Reversed and remanded with directions.

Statement of case by the court.

This is an action in form for money had and received. The petition alleges that on the twenty-second day of March, 1883, the plaintiff and one Franklin Carter were partners, and that on that day they let the defendant have of their partnership money the sum of five hundred dollars, whereby defendant became indebted to them in that sum. It is alleged that since that time the co-partnership has been dissolved, and that plaintiff has become the successor to said claim by an assignment thereof, for value, by his said partner of his interest therein. The prayer is for judgment for said sum with interest, etc.

The answer, after tendering the general issue, pleaded that, on the said twenty-second day of March, 1883, he contracted with said partners for the purchase from them of a lot of fat cattle, to be kept by them for a given period of time, and delivered within a certain time and at a designated place that, at the time of making said contract, the said Mason and Carter paid him thereon the sum of five hundred dollars which is the same money mentioned in plaintiff's petition. The answer then alleges various breaches of said contract on the part of said Mason and Carter, in failing to deliver the said cattle according to contract, whereby he was damaged in the sum of about one thousand dollars. Defendant averred that he had kept and performed the contract on his part, but the same was broken by said Mason and Carter wherefore he denied their right to recover back the said purchase money so paid.

The plaintiff replied, tendering the general issue as to so much of the new matter as not admitted. It was then alleged that the same matters on which defendant bases his answer had been fully adjudicated in the same circuit court in a former action, wherein the defendant here sued said Mason and Carter, to recover damages for the alleged breach of contract on their part, and the reply claimed that the issue thus tendered by the answer was res adjudicata.

The cause was submitted for trial before the court, without the intervention of a jury. The plaintiff, to sustain the issues on his part, made proof of the partnership, as alleged in the petition, and of the written assignment to him of the interest of said Carter in said five hundred dollars.

The defendant put in evidence the written contract between him and Mason and Carter for the sale of said cattle, to be delivered at a future date, acknowledging the receipt of five hundred dollars, paid thereon. The defendant, over the objection of plaintiff, testified to the failure of said Mason and Carter to deliver the cattle according to the terms of the contract, and the amount of his damages consequent thereon, amounting to about one thousand dollars. He also testified that he had kept the said contract on his part.

The plaintiff, in rebuttal, then read in evidence the petition filed by defendant in the Ray circuit court in 1884, prior to this action, against said Mason and Carter, wherein he sued upon the said contract, alleging a performance thereof on his part, and the non-performance on the part of the said Mason and Carter, in that they failed to deliver the said cattle at the time and place agreed upon in said contract; and alleged that by reason of the premises he had sustained damages in the sum of one thousand dollars, and prayed judgment for the excess over the said sum of five hundred dollars, paid him on said contract by Mason and Carter. Also the answer of Mason and Carter thereto, in which they denied that plaintiff had kept and performed the said contract, and averring that defendants kept and performed the same. The answer further pleaded that, notwithstanding the failure of plaintiff to so keep and perform the contract, he retained and refused to return the said sum of five hundred dollars paid him thereon though requested thereto, and judgment was asked therefor against the plaintiff. Also the replication of plaintiff tendering the general issue. Also the written contract, heretofore mentioned, which was the predicate of the action. The plaintiff then read in evidence the record entry made in said cause, showing that in said action, prior to trial, the defendants therein had withdrawn that part of their answer respecting the counter-claim for said five hundred dollars.

The plaintiff also read in evidence the verdict of the jury therein, finding the issues for defendant, and the judgment of the court, that plaintiff take nothing by his said action, and that defendant go hence with his costs. This was all the evidence.

The plaintiff asked, and the court refused, the following declarations of law:

" 1. If the court, sitting as a jury, believes from the evidence that the five hundred dollars sued for was paid to defendant as a bonus in part payment for a lot of cattle purchased by plaintiff and one Franklin A. Carter, from defendant; that said purchase was not consummated; that defendant brought suit against said parties in this court at February term, A. D., 1884, alleging that he had performed all the conditions of said contract for sale of said cattle, and that defendants had wholly failed to perform the conditions of the contract upon their part, and had failed to receive said cattle according to the terms and stipulations thereof, claiming damages, viz: The sum of ______ dollars for the alleged breaches of the conditions of said contract by said defendants; that said defendants in their answer denied a failure upon their part to perform the conditions of said contract, and alleged that plaintiff had failed to perform the conditions of the contract, and was not entitled to any judgment for damages; that defendants withdrew by entry of record from the consideration of the jury in said trial, the payment of said sum of five hundred dollars, paid as aforesaid; that there was at the term aforesaid a full and fair trial of the issue aftersaid, and a verdict and judgment for said defendants; and further believes that said indebtedness of said Summers has since been assigned for value by said Carter to said Mason, then the finding should be for plaintiff for the amount claimed in the petition."

" 2. That the trial of the issues involved in said contract as stated in the first instruction was a full adjudication of all claims of defendant for damages thereunder, and left defendant indebted to plaintiff and Franklin A. Carter in the sum claimed in the petition, and the defendant, by reason of the adjudication of his rights and claims under said contract in said trial is precluded from setting up any claim under said contract as a bar or defence to the recovery of the indebtedness claimed in the petition by plaintiff, said issues having been found against defendant in said trial, and the consideration of the amount herein sued for having been excluded from the consideration of the jury."

The defendant asked and the court gave the following declaration:

" That if the court finds from the evidence in this cause that the sum of five hundred dollars, sued for, was a part payment upon a contract for a lot of cattle sold by said defendant to Mason and Carter, and further, finds that the defendant performed the said contract on his part, and further finds that the said Mason and Carter failed to perform the contract on their part, then the plaintiff cannot recover in this action."

The court found the issues for defendant, and plaintiff prosecutes this writ of error.

JAMES L. FARRIS and JOSEPH E. BLACK, for the appellant.

I. The same issues set up in defendant's answer having been fully adjudicated in another case between plaintiff and defendant and his assignor, constitutes no legal defence herein. Spalding v. Colway, 51 Mo. 51. And former adjudications are usually proved by the record. Sweet v. Maupin, 47 Mo. 323. The pleadings and record in the former suit show plainly that the issues determined therein are the same set up in defence in this suit.

II. An action for money had and received is the proper remedy herein. Stewart v. Phy, 18 Cent. Law Jour. 335; Reubens v. Nat. Const. Co., 20 Cent. Law Jour. 34.

III. The claim for money paid by plaintiff herein was not involved in the issues made by the pleadings in the former suit between plaintiff and defendant, and could not have been involved in the evidence, as it was withdrawn by entry of record; and being a separate claim of set-off, plaintiff is entitled to his separate action thereon, and it was optional with him whether he should set the same up in the former suit or not. Wells on Res Adjudicata, sect. 250; Barber v. Cleveland, 19 Mich. 237; Thompson v. Windland, 11 Mo. 245; Hickerson v. City of Mexico, 58 Mo. 61.

IV. The defendant has not set up in defence that the amount claimed in this suit should have been pleaded in defence in the former suit, and having failed to make the defence in the court below, in the trial of this cause therein, he cannot raise this objection for the first time on appeal to this court. Alexander v. Hayden, 2 Mo. 211; Swearingen v. Newman, 4 Mo. 456; Cornelius v. Grant, 8 Mo. 59; Boyce v. Burt, 34 Mo. 74; Phillibut v. Burch, 4 Mo.App. 470.

C. I. GARNER & SON, for the respondent.

I. Plaintiff cannot recover, in this indirect manner, money which, by the established principles of law, he cannot recover directly. Stephens v. Beard, 4 Wendell (N Y.) 605; Ketchum v. Evertson, 14 Johnson (N. Y.) 358; Lawtry v. Parks, 8 Cowen (N. Y.) 63; Ellis v. Hoskins, 14 Johnson (N. Y) 363. The contract between the parties...