Mertens v. McMahon

• Decision Date: 05 May 1930
• Docket Number: No. 15990.,15990.
• Citation: 28 S.W.2d 456
• Parties: MERTENS v. McMAHON.
• Court: Missouri Court of Appeals

28 S.W.2d 456

MERTENS v. McMAHON.

No. 15990.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Certified to Supreme Court May 26, 1930.

Appeal from Circuit Court, Gasconade County; R. A. Breuer, Judge.

Action by Henry C. Mertens against Joseph F. McMahon. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, and cause certified and transferred to Supreme Court.

Leahy, Saunders & Walther, of St. Louis, for appellant.

Luke Hart, of St. Louis, and L. G. Graf, of Hermann, for respondent.

BLAND, J.

This is an action for the value of goods sold and delivered, money advanced and expended, work done by plaintiff with certain road machinery and for the transportation of road machinery, equipment and material. There was a verdict and judgment in favor of the plaintiff in the sum of $2664.32. Defendant has appealed.

The facts show that plaintiff resided at Morrison and was president of the Morrison Bank but devoted his time to the business of selling machinery. About the first of March, 1922, defendant, who lived in St. Louis, went to Morrison to see one W. L. Walz concerning the subletting to said Walz of the work of excavating a public road in Gasconade County, defendant at the time having in view the securing of a contract for certain work upon the road from the state highway commission but at that time had not secured the contract. The contract was secured by defendant from the commission about the first of April, at which time he returned to Morrison where he entered into a contract with Walz and one Haeffner, subletting the excavating work upon the road. Walz and Haeffner then employed plaintiff by written contract dated May 1st, 1922, to furnish tractors, scrapers, plows and other tools required for the work. For some reason not shown in the record, the contract between defendant and Walz and Haeffner was cancelled and annulled. Plaintiff testified "Mr. Walz threw up the contract" about ten days after it was made. Defendant testified that the "Walz contract had blown up" and that he knew that Walz "was out of a job," when on May 5th, he entered into a new contract with Haeffner, alone, for the doing of the work which had been subcontracted to Walz and Haeffner. This contract according to plaintiff "superseded the contract previously destroyed," that is, the contract between defendant and Haeffner and Walz. Defendant entered into the new contract with Haeffner at the Morrison Bank. At this time plaintiff had a conversation with defendant at which Haeffner was not present. In this conversation plaintiff inquired of the defendant regarding plaintiff's pay. Plaintiff had from the first questioned Haeffner's financial responsibility. At the time in question plaintiff stated to defendant that Haeffner's "finances couldn't possibly carry that load, and that unless he would assure me of my pay it would be impossible for me to undertake the work." Defendant promised that as the work progressed he would send the money with which to pay plaintiff to him at the Morrison Bank, plaintiff during this conversation told defendant what the hourly rental of his tractor and tools would be and the price of the materials to be furnished. These charges were agreed to by McMahon.

There is no dispute in the evidence as to the fact that plaintiff complied with his agreement, if any, and that the amount charged therefor is proper and reasonable.

About the middle of June defendant came to Morrison and he and plaintiff together went from there to the road where the work was being done. Defendant then stated that he was short of finances and asked plaintiff if he would wait until defendant received his money from the state highway commission for the June estimate. The May estimate was then about due. Plaintiff agreed to this but defendant did not pay out of the June estimate the amount then about due plaintiff nor has he ever paid plaintiff anything.

During the trial defendant admitted that he owed plaintiff the sum of $178.20, the amount of the four last items of the account sued upon, covering transportation, cash advanced to pay certain freight charges and the price of a grader and plow. Defendant stated that he had offered to pay this last mentioned amount to plaintiff but the latter refused to accept anything less than his entire demand.

The evidence shows that defendant paid by check Haeffner's men who worked upon the job. None of them were paid by Haeffner. Defendant testified that he did this for the reason that Haeffner requested that he pay them; that Haeffner "sent in the time" and defendant "sent down the checks direct." Defendant denied the conversation testified to by plaintiff relative to the manner in which plaintiff was to be paid, that is, that defendant would pay him instead of Haeffner. Defendant also denied that he promised to pay plaintiff for the work the latter did on the road.

There is no dispute in the evidence that plaintiff did all of the work specified in the contract which had theretofore been in existence between plaintiff and Haeffner and Walz. The inference to be gathered from the testimony is that the two written contracts were rescinded by the parties thereto prior to the execution of the contract between defendant and Haeffner on May 5th, 1922.

Prior to the bringing of the present suit plaintiff brought another one in the circuit court of Gasconade County against the present defendant and Haeffner. Thereafter, defendant, McMahon, filed his answer to the cause which contained a plea in abatement, attacking the jurisdiction of the court over his person on the ground that he was a resident of the city of St. Louis; that plaintiff was a resident of Gasconade County; that defendant, Haeffner, was a resident of the same county and was not a necessary party and was joined as defendant for the sole purpose of attempting to confer jurisdiction upon the Gasconade County Court over the defendant, McMahon; that under the statutes of the state and the decisions construing the same the said joinder of Haeffner for such purpose was prohibited and forbidden. Thereafter at the September Term, 1925, of the court, the plea in abatement was sustained and the cause dismissed. Immediately thereafter, as defendant, McMahon, was leaving the court room he was served with a summons in the case at bar, which is the same cause of action as the one pleaded in the case between plaintiff and McMahon and Haeffner which had been dismissed by the court.

The petition in this cause was filed on September 16th 1925. On January 11th, 1926, defendant herein filed a motion to quash the summons and service. This motion recited that defendant appeared solely for the purpose of the motion to quash and for no other purpose. The motion alleged that the court had no jurisdiction over the defendant as he resided in St. Louis and plaintiff resided in Gasconade County; that the filing of the suit was fraudulent and for the purpose of enabling plaintiff to confer jurisdiction upon the circuit court of Gasconade County. The motion then set up the filing and the history of the first suit, the plea in abatement therein and the judgment of the court; that the summons had been served in this present suit as defendant was leaving the court room where he had been engaged in the prosecution of his plea in abatement. The motion alleged that the issuance of the summons and service thereof on the defendant was fraudulent and void.

After the filing of the motion to quash the case was continued until the May Term and on May 11th, at said May Term, the case was again continued until the September Term. On September 14th, at the September Term, without defendant's motion to quash having been disposed of, he filed an answer in which he joined a plea in abatement, in which he alleged substantially the same facts as set forth in his motion to quash the summons, with an answer to the merits. The answer to the merits consisted of a general denial, a pleading of the statutes of frauds and an allegation that the agreement alleged in the petition was without consideration. The court on the last mentioned day took up that part of the answer consisting of the plea in abatement and after hearing testimony overruled the same. Thereafter, on the same day, the case was tried on its merits in which defendant participated. A judgment was rendered in favor of the plaintiff upon the merits as aforesaid.

It is first insisted that the court erred in refusing to give defendant's declaration of law at the conclusion of the trial on the plea in abatement, which was a request that the court find for him on said plea, and that the court erred in finding for plaintiff on the issue raised by said plea. In this connection it is insisted by the defendant that the institution of the present suit and the service and summons upon the defendant, while he was leaving the court room immediately after the hearing of his plea in abatement in the first suit, constituted a legal fraud upon him. Plaintiff very strenuously insists that the institution of this suit and the suing out and service of the summons was entirely legal and proper under the decisions of the courts of this state. We need not go into this question for the reason that we think defendant waived the matter of jurisdiction over his person, there being no contention but that the court had jurisdiction over the subject matter, by entering into the trial of the cause upon its merits after the overruling of his plea to the jurisdiction contained in his answer.

Defendant insists that as the question of jurisdiction over him arose out of matters dehors the record he had a right to join in his answer a plea in abatement or to the jurisdiction with one to the merits and that he did not waive his plea to the jurisdiction by going to trial upon the merits.

Where the want of jurisdiction over defendant's person appears upon the face of the return of the summons the proper method of raising the jurisdictional...