Mitchell v. Health Culture Co.

• Citation: 162 S.W.2d 233,349 Mo. 475
• Decision Date: 16 April 1942
• Docket Number: 37791
• Parties: F. L. Mitchell, Appellant, v. The Health Culture Company, a Corporation, Ball Sanitarium & Health School, Inc., a Corporation, S. E. Ball and D. B. Bruner Ball
• Court: United States State Supreme Court of Missouri

162 S.W.2d 233

349 Mo. 475

F. L. Mitchell, Appellant, v. The Health Culture Company, a Corporation, Ball Sanitarium & Health School, Inc., a Corporation, S. E. Ball and D. B. Bruner Ball

No. 37791

Supreme Court of Missouri

April 16, 1942

Rehearing Denied June 3, 1942.

Appeal from Clinton Circuit Court; Hon. R. B. Bridgeman Judge.

Reversed and remanded (with directions).

Cross & Cross and Moore & Moore for appellant.

(1) The ruling of the trial court on defendants' demurrer comes before the court for review upon the record proper. No exceptions, bill of exceptions, motion for new trial nor motion in arrest are necessary to preserve for review the rulings of the trial court upon the demurrer. City of St Louis v. Senter Comm. Co., 102 S.W.2d 103, 340 Mo. 633; Presley v. Central Terminal Co., 142 S.W.2d 799; Warren v. Lead & Zinc Co., 255 Mo. 138, 164 S.W. 206. (2) For the purpose of this review, the demurrer confesses the truth of all allegations well pleaded, and reasonable inferences therefrom. Farm & Home Savings & Loan Assn. v. Armstrong, 85 S.W.2d 461, 337 Mo. 349; Silverforb v. Bank of Nashua, 128 S.W.2d 1070, 233 Mo.App. 1239. (3) The instrument sued on in the first count of the first amended petition contains all of the usual provisions of a conventional promissory note except there is no maturity date specified. As to this, it is provided "This note is one of a series of seven notes aggregating Twenty-five Thousand Dollars ($ 25,000) and is due and payable, as follows:" by the makers paying 10% of all cash received as income from their businesses. (a) The obligation created or evidenced by this instrument is an absolute obligation to pay a certain sum unconditionally the only uncertainty or condition is as to the time of payment. Regardless of any other allegations, performance would become due within a reasonable time. In view of the other allegations, it also became due for other reasons. Ubsdell v. Cunningham, 22 Mo. 124; Bank of Corning v. Consolidated School District, 54 S.W.2d 486, l. c. 490, 227 Mo.App. 523, l. c. 530; Kansas City ex rel. Barnett v. Spitcaufsky, 239 S.W. 808; Goldsberry v. Thomas, 178 Mo.App. 334, 165 S.W. 179; 17 C. J. S., sec. 456 (d), p. 939; Leon v. Barnsdall Zinc Co., 309 Mo. 276, 274 S.W. 699. (b) Even if the obligation created or evidenced by this instrument be considered as being payable only from a particular fund, still, under the other allegations of the petition, the obligation to pay became absolute and due. Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257; Knisely v. Leathe (2nd appeal), 178 S.W. 453; Mercantile Company v. Chapman, 78 Mo.App. 616; Parker-Washington Co. v. Dennison, 267 Mo. 199, 183 S.W. 1041; 17 C. J. S., sec. 456 (d), p. 93, sec. 470, p. 971; 12 Am. Jur., sec. 330, p. 885. (4) The instrument sued on in Count One is, by its terms, an obligation to pay plaintiff, only, and it cannot be converted into an obligation to pay plaintiff and others jointly by any statement relating to the time of payment or the source from which payment is expected or shall be made. This being true, there is no splitting of causes of action nor defect of parties plaintiff. Broyles v. Achor, 78 S.W.2d 459, l. c. 462; B. S. Williams & Co. v. Kitchen, 40 Mo.App. 604; Gaddis v. Williams, 81 Okla. 289, 198 P. 483; Nesbitt v. Independent District of Riverside, 144 U.S. 610, 36 L.Ed. 562; 17 C. J. S., secs. 350, 352, pp. 805, 808; 1 C. J. S., sec. 103, p. 1316, sec. 103 (c) (5), p. 1323; Thayer v. Campbell, 9 Mo. 280. (5) The allegations of the first count which were first added in amended petition are pertinent to the suit on the note as being facts showing that the obligation on note was unconditional and due. They do not state or attempt to state an independent cause of action ex delicto. Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257; Taylor v. Rust, 198 S.W. 194; Leon v. Barnsdall Zinc Co., 309 Mo. 276, 274 S.W. 699. (6) The individual defendants who "endorsed" the note sued on in Count One by signing on the back thereof before delivery became liable either as endorsers or joint makers. In either event, a cause of action is stated against them. Farm & Home Savings & Loan Assn. v. Theiss, 111 S.W.2d 189, 342 Mo. 40; Harrick v. Edwards, 106 Mo.App. 633, 81 S.W. 466; Chaffe v. Railroad Co., 64 Mo. 193; Pool v. Anderson, 18 N.E. 445, 116 Ind. 88. (7) Count Two of the petition pleads a written contract between plaintiff and defendants; that it was performed by plaintiff but that defendants failed and refused to perform the contract except in one particular. Even if the elements of damage alleged are not proper measures of damage for breach of the contract pleaded, still, such count states a cause of action for at least nominal damage and is good against demurrer. Osborne v. Benbow, 38 Mo.App. 25; Carthage National Bank v. Poole, 160 Mo.App. 133, 141 S.W. 729; Burkeholder v. Rudrow, 19 Mo.App. 60; Christal v. Craig, 80 Mo. 367; Universal Credit Co. v. Axtell, 124 S.W. 555, 233 Mo.App. 357; 25 C. J. S., sec. 130. (8) Count One of the amended petition is to recover the amount agreed to be paid in the note sued on and Count Two is to recover damages for the breach of the contract therein sued on. Both such causes of action are ex contractu and are, therefore, properly joined in the same petition. Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257; Koch v. State Highway Comm., 47 S.W.2d 138; Nichols v. Bank, 55 Mo.App. 81; 1 C. J. S., sec. 44, p. 1098, sec. 49, p. 1107, sec. 1 (a) (3), p. 943. (9) Both counts are on written contracts for the payment of money or property and governed by the ten year Statute of Limitations. The five year statute does not apply. In any event, action was commenced on both counts May 23, 1935, and within five years after the date of each instrument, and the amended petition was not a departure which would be tantamount to commencing a new action. Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257; Mo., K. & T. Ry. Co. v. American Surety Co., 291 Mo. 92, 236 S.W. 657; Taylor v. Rust, 198 S.W. 194.

James H. Hull, Henry E. Sampson, D. F. Bennett and C. H. Kohler for respondents.

(1) The appellant seeks to rescind his settlement contract, but does not offer to restore the status of the parties prior to the making of said settlement contract, and he alleges no legal ground entitling him to rescission of the settlement contract. Christal v. Craig, 80 Mo. 367; Mooney v. Kennett, 19 Mo. 553; Dyer v. Krayer, 37 Mo 603; McGhee v. Larramore, 50 Mo. 425; Crowell v. Plant, 53 Mo. 145; Pettis County v. Kingsbury, 17 Mo. 479, l. c. 484; Worden v. Dodge, 4 Denio, 159, 47 Am. Dec. 247; Tomlin et al. v. Neale, 245 P. 800; Davis v. Daublin, 140 S.W.2d 652; Odem Realty Co. v. Dyer, 45 S.W.2d 838; Owens v. Curd, 232 S.W. 639; Mercantile Co. v. Chapman, 78 Mo.App. 616; Moody v. Cass County, 74 Mo. 307; Campbell v. Polk County, 49 Mo. 214; Kingsberry et al., exrs. of Kingsberry, v. Pettis County, 48 Mo. 207; State ex rel. Watkins v. Macon County Court, 68 Mo. 29; Gilbert v. Miller, 228 P. 662; Metropolitan Discount Co. v. Indermeuhle, 227 S.W. 1037; Bank of Burney v. Blades, 48 Mo. 806; Anderson's Law Dictionary, p. 713; 2 Bouvier's Law Dictionary, p. 386; Bick v. Clark, 134 Mo.App. 544, l. c. 546. (2) There is a defect of parties plaintiff in that on the face of said petition and on the face of instrument attached to the petition, it is shown that said instrument sued on herein is one of seven such instruments, amounting to twenty-five thousand dollars ($ 25,000.00), executed by the makers of the note sued on herein, all of which are to be paid out of a general fund made up of ten per cent (10%) of the income of the corporate defendants in proportion to the amounts of the several notes; that all of said parties payees in said notes are necessary parties to this suit, and that all of said notes constitute but one cause of action and plaintiff cannot split up the cause of action as is being done in this case. R. S. 1939, sec. 853; Frumberg v. Haderlein, 151 S.W. 160; Phillips, Principles of Pleading (1896), secs. 455, 456; 47 C. J. 60, secs. 120, 121; 47 C. J. 62, sec. 128; 1 Black, Rescission & Cancellation (2 Ed.), p. 4, sec. 1; 12 Am. Jur. 1031, sec. 451. (3) Misjoinder of causes of action. (a) Intermingling of two conflicting causes of action, ex contractu and ex delicto, in Count I. (b) Intermingling of two conflicting causes of action, ex contractu and ex delicto, in Count II. (c) Conflicting causes of action, ex contractu and ex delicto, between Count I and Count II. Parker-Washington Co. v. Dennison, 183 S.W. 1041; Knisely v. Leathe, 256 Mo. 368, 166 S.W. 263; Stalcup v. Garner, 26 Mo. 72; Mitchner v. Holmes, 117 Mo. 185, 22 S.W. 1070; Anderson v. McPike, 51 Mo.App. 328; Dorrance v. Dorrance, 257 Mo. 317, 165 S.W. 783; Watts v. Meyer, 189 S.W. 29; Crowley v. Sutton, 209 S.W. 902; Darrow v. Briggs, 261 Mo. 244, 169 S.W. 118; Mulholland v. Rapp, 50 Mo. 42; Otis v. Bank, 35 Mo. 128; Brown v. Ry. Co., 20 Mo.App. 427; Fadley v. Smith, 23 Mo.App. 87; Wilson v. Ry. Co., 67 Mo.App. 443; Reed v. Milk Co., 187 Mo.App. 542, 174 S.W. 110; Zeideman v. Molasky, 118 Mo.App. 106, 94 S.W. 754; Roberts v. Anderson, 254 S.W. 723; Peycke Commission Co. v. Davis, Agent, 257 S.W. 824; Grain Co. v. Hickey, 200 S.W. 438; Koch v. State Highway Commission, 47 S.W.2d 138, l. c. 140; Hockley v. Hulet Bros. Storage and Moving Co., 16 S.W.2d 751; Fadley v. Smith, 23 Mo.App. 87, l. c. 93; Pipe Co. v. Railroad, 137 Mo.App. 479, l. c. 497; Sumner v. Rogers, 90 Mo. 324, l. c. 329; Jamison v. Copher, 35 Mo. 483, l. c. 487; Ederlin v. Judge, 36 Mo. 350; Southworth Co. v. Lamb, 82 Mo. 242, l. c. 247; Barnes v. Railroad, 119 Mo.App. 303, l. c. 306; R. S. 1929, sec. 770. (4) Statute of Limitations has run against the ex delicto cause of action set up in ...