Merrill v. Rokes

• Decision Date: 20 February 1893
• Docket Number: 129.
• Citation: 54 F. 450
• Parties: MERRILL v. ROKES.
• Court: U.S. Court of Appeals — Eighth Circuit

54 F. 450

MERRILL v. ROKES.

No. 129.

United States Court of Appeals, Eighth Circuit.

February 20, 1893

Statement by SANBORN, Circuit Judge:

This is a writ of error to reverse a judgment in favor of the plaintiff, who is here the defendant in error, and against the defendant, who is here the plaintiff in error, rendered in an action brought to recover damages for the alleged negligence of the defendant as an agent in collecting moneys due to the plaintiff, his principal. The plaintiff set forth three causes of action in his petition. The first was for money had and received; the second was for damages for the negligence of the defendant, as his agent, in failing to collect two promissory notes, which amounted in the aggregate to $1,925, made by one Mooney, and payable to the order of the plaintiff; and the third was for damages for advising and influencing the clerk of the district court of Ness county Kan., to refuse to pay to the plaintiff $887.21, which had been deposited with him to abide the result of a litigation over it, pending upon a writ of error in the supreme court of Kansas between certain creditors of one Peters and one Topping in an action in which a judgment had been rendered in the district court in favor of Topping and against Peters for $1,206, and assigned to the plaintiff and defendant jointly and for damages for the negligence of the defendant in failing to collect that judgment. The defendant denied the negligence, and pleaded that he had incurred attorneys' fees and expenses in his endeavors to collect these claims for the plaintiff, for which he sought allowance.

As to the third cause of action the facts were these: From 1885 until February 22, 1888, the defendant was a private banker at Ness City, Kan., under the name of the Ness County Bank. On that day the bank was incorporated, and the corporation under the same name, succeeded to the defendant's bank business and assets. The defendant became, and has since been, its president, and one of its stockholders. In 1889 one Topping was owing the defendant or his bank, and also the plaintiff, and to secure them both he assigned to the plaintiff and defendant jointly a judgment of $1,206 he had recovered against one Peters. A stock of goods which had been seized under process of the court in that action had been sold, and its proceeds, about $800, paid to the clerk of the court to abide the result of a litigation between Topping and certain attaching creditors of Peters, (who claimed the right to this money,) which had been decided in favor of Topping in the district court, but was pending in the supreme court of Kansas on writ of error. There was no evidence that the clerk of the court was advised or influenced by the defendant to withhold this money from the plaintiff, or that the defendant was negligent in collecting it. This action between the plaintiff, Rokes, and the defendant, Merrill, was commenced on August 13, 1890. Over the objection of the defendant the plaintiff testified that in March, 1891, the defendant collected from the clerk of the court $800 on the Topping judgment. On the part of the defendant it appeared that the district court had ordered the clerk to pay this $800 over to Topping upon his filing a bond conditioned to return the money in case the supreme court should reverse the judgment rendered below; that the Ness county bank procured such a bond to be given, signed by Topping as principal and the defendant and others as sureties, and on this order and bond the money was drawn from the clerk and paid over to the bank, to be held in trust for Topping, the bank, and the plaintiff until the final decision of the supreme court.

Upon this state of facts the defendant requested the court to instruct the jury with reference to this third cause of action-- First, that they must return a verdict for the defendant; second, that if they found that the money on the Topping judgment was not drawn out until after this action was commenced, the plaintiff could not recover on this cause of action; and, third, that if they found that the money was drawn out by the defendant upon giving a restitution bond, and proceedings were still pending in the supreme court of Kansas to reverse the judgment in Topping's favor, the money might be retained by those who gave the bond, until the case was finally determined in the supreme court. The court declined to give either of these requests, charged the jury that no claim was made by the plaintiff on the first cause of action for money had and received; that they would not consider that cause of action, but that, if they believed under the evidence that the defendant had collected this $800, he was liable to the plaintiff for his just proportion of it. The jury found for the plaintiff on this issue, and the defendant assigned the rulings stated as error.

Robert Dunlap, (George S. Redd and A. A. Hurd, on the brief,) for plaintiff in error.

Charles Blood Smith, (W. H. Rossington and E. J. Dallas, on the brief,) for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge, after stating the facts as above, .

1. One may not, in the trial of an action, without pleading or notice, prove and recover judgment upon a cause of action which did not accrue until after the action on trial was commenced. Rev. St. U.S. Sec. 914; Gen. St. Kan. par. 4227; Porter v. Wells, 6 Kan. 453; 1 Greenl.Ev. § 51. Paragraph 4227 of the Kansas statutes provides that 'either party may be allowed on notice and such terms as the court may prescribe to file a supplemental petition, answer, or reply alleging facts material to the case occurring after the former petition, answer, or reply,' and the highest judicial tribunal of that state has held that it is reversible error to receive evidence on behalf of a plaintiff of material facts occurring after the filing of his petition, without such supplemental pleading, (Porter v. Wells, supra,) yet the cause of action on which the plaintiff recovered here without pleading notice or terms did not accrue until six months after the filing of his petition.

2. One may not bring and try his suit upon one cause of action and recover a judgment or decree upon another. A judgment, in order to be sustained, must be according to the allegations and the proofs, Burton v. Platter, 53 F. 901 (decided by this court at this term;) Taussig v. Glenn, 51 F. 409, 413, 2 C.C.A. 314, 4 U.S.App. 524; 1 Black, Judgm. § 242. The reason of this rule, that the defendant may have ample opportunity, after notice of the nature of the claim against him, to plead his defenses and set-offs and procure his evidence in support of them, is obvious. The importance of adhering to it is well illustrated in the cases just cited and in the case we are considering. Here, upon a petition setting forth a cause of action for damages for wrongfully advising and influencing a third person and negligently failing to collect a judgment without proof to support it, a judgment is obtained without pleading or notice,...