Moormeister v. Hannibal

• Decision Date: 03 February 1914
• Citation: 163 S.W. 926,180 Mo. App. 717
• Parties: MOORMEISTER v. HANNIBAL et al.
• Court: Missouri Court of Appeals

163 S.W. 926

180 Mo. A. 717

MOORMEISTER v. HANNIBAL et al.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

Rehearing Denied February 17, 1914.

1. APPEAL AND ERROR (§ 80)—JUDGMENT APPEALABLE —"FINAL JUDGMENT."

A judgment that "plaintiff's cause of action herein be and the same is hereby dismissed, and that defendants have and recover of said plaintiff their costs and charges herein expended, and have therefor execution," is a final judgment, within Rev. St. 1909, § 2038, so as to be appealable, though it did not provide that defendants go hence without day.

2. FRAUDS, STATUTE OF (§ 148)—NECESSITY OF PLEADING IN AVOIDANCE OF STATUTE.

A verbal contract within the statute of frauds is not void, but merely unenforceable, the statute merely going to the remedy, so that the petition, in an action on a contract, required to be in writing, need not allege that it is in writing in order to be sufficiently definite, since the law presumes that the contract declared on is valid until the contrary is shown.

3. PLEADING (§ 11)—ALLEGATIONS OF PETITION —EVIDENCE.

The code provision requiring the petition to plainly state the facts constituting a cause of action only requires the ultimate facts to be alleged, and does not require plaintiff to plead his evidence.

4. FRAUDS, STATUTE OF (§ 152)—WAIVER.

Since the statute of frauds only goes to the remedy, it may be waived by defendant, and is waived unless set up by him.

5. FRAUDS, STATUTE OF (§ 152)—PLEADING STATUTE.

While, if defendant denies the contract sued on, he may make denial in the answer and require plaintiff to prove a contract which satisfies the statute of frauds, if defendant admits the contract, but seeks to avoid its effect under the statute of frauds, he must expressly plead the statute.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Eduard Moormeister against John M. Hannibal and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Henry E. Haas and Blevins & Jamison, all of St. Louis, for appellant. William Hilkerbaumer and Schnurmacher & Rassieur, all of St. Louis, for respondents.

NORTONI, J.

This is a suit for damages alleged to have accrued to plaintiff through a breach of contract on the part of defendants. The court sustained defendants' motion and entered an order requiring plaintiff to make his petition more definite and certain. Plaintiff declined to plead further, and thereupon the court entered an order dismissing his cause, giving judgment for costs in favor of defendants, and awarding execution against plaintiff therefor. It is from this judgment plaintiff prosecutes the appeal here.

It is urged the appeal should be dismissed for the reason the judgment is not a final one from which an appeal may be prosecuted, but we are not so persuaded. The statute (section 2038, R. S. 1909) authorizes an appeal by an aggrieved party from any final judgment in the case. The point made here is that a judgment dismissing plaintiff's cause of action is not a final judgment in the case, for the reason it does not finally discharge defendants in directing that they should go hence without day. The argument is exceedingly technical, and seems not to reckon with the fact that a judgment dismissing plaintiff's cause of action, if otherwise final in form, may dispose of that particular case, though it does not finally conclude the controversy between the parties. Such is the judgment here. In the instant case, after reciting that plaintiff declined to plead further, the judgment proceeds as follows: "Upon motion of said defendants, it is ordered and adjudged by the court that the plaintiff's cause of action herein be and the same is hereby dismissed, and that the defendants have and recover of said plaintiff their costs and charges herein expended, and have therefor execution." Obviously this judgment finally disposes of the case, for it dismisses plaintiff's cause of action, and, moreover, it taxes the costs against him and in favor of defendants, and orders an execution therefor. The case of Bick v. Umstattd, 137 Mo. App. 270, 117 S. W. 642, is to be distinguished in the form of the judgment, for there the court merely ordered the cause dismissed without the taxation of costs or awarding execution. Not so here, for the court determined the whole matter then within the purview of the order to be made by dismissing the case, taxing the costs against plaintiff, and ordering execution in favor of defendants therefor. It would have been error in such circumstances to finally discharge defendants as without day for the reason that the controversy remained open and the instant case only was dismissed. There can be no doubt that a judgment dismissing plaintiff's cause of action, taxing costs against him, and awarding the process of the court in the writ of execution for the collection of such costs is a final determination of that particular case, though it may not be a final determination of the controversy between the parties. See Kansas City Cable Ry. Co. v. Kansas City, 29 Mo. App. 89, 96; Iron Mountain Bank v. Armstrong, 92 Mo. 265, 4 S. W. 720; Wiethaupt v. St. Louis, 158 Mo. 655, 59 S. W. 960; 2 Enc. Pl. & Pr. 103; 2 Cyc. 593; Freeman on Judgments (4th Ed.) § 16. In the following cases it appears that plaintiff refused to plead further, and the court dismissed the cause of action as here for that reason, taxing the costs against plaintiff. In each instance the Supreme Court declared the judgment so entered to be final in the particular case in the sense contemplated by the statute authorizing an appeal from any final judgment in the case. See Bowie v. Kansas City, 51 Mo. 454; O'Connor v. Koch, 56 Mo. 253; Moody v. Deutsch, 85 Mo. 237, 244.

The defendants are a number of individuals, and the Mound City Brewing Association, a corporation, all jointly sued. Plaintiff alleges in his petition, substantially, that on or about the 20th day of February, 1911, the natural persons named in the petition as individual defendants proposed to organize and did organize a $50,000 corporation to engage in the general business of brewing and to operate a brewery for the manufacture and sale of beer; that plaintiff was and for a long time prior to said day had been a brewmaster, and was possessed of special knowledge and skill as to all matters appertaining to the manufacture of beer, and as to the machinery, appliances, and processes incident to that business. The petition further alleges the ultimate fact that the "said individual defendants, desiring to secure the services of plaintiff as general manager and brewmaster, on said date (to wit the 20th day of February, 1911) contracted and agreed with plaintiff for his employment by them for a period of one year, at a monthly salary of $175, to be paid...