Moormeister v. Hannibal
| Citation | 163 S.W. 926,180 Mo.App. 717 |
| Parties | EDUARD MOORMEISTER, Appellant, v. JOHN M. HANNIBAL et al., Respondents |
| Decision Date | 03 February 1914 |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.
REVERSED AND REMANDED.
Reversed and remanded.
John A Blevins, Joseph W. Jamison and Henry E. Haas for appellant.
(1) It is an elementary principle of code pleading that only the ultimate, or substantive, facts constituting the plaintiff's cause of action should be pleaded and that all evidentiary facts should be excluded. The reason for the rule is said to be that the ultimate fact in issue may be truly stated generally though sustained by other evidence than that anticipated by the pleader. Sec. 1813, R. S. 1909; Pattison on Code Pleading, Secs. 109, 128; Phillips on Code Pleading, Sec. 347; Bliss on Code Pleading, Secs. 140 and 206; Stephen on Pleading (9 Ed.), p. 341; Heard's Civil Pleading, p. 246; Van Hoozer v. Van Hoozer, 18 Mo.App. 19; Butts v. Long, 94 Mo.App. 687; Bragg v. Railway, 192 Mo. 331. (2) Thus, it is settled by the great weight of authority that in an action upon a contract required by the Statute of Frauds to be in writing, it need not be alleged in the petition of complaint that it is in writing, that being matter of proof and not of allegation. 9 Ency. P. & P. 700 et seq.; Bliss on Code Pleading, Sec. 354; Browne on Statute of Frauds, (5 Ed.), Sec. 505; Miles v Jones, 28 Mo. 87; Gist v. Eubank, 29 Mo. 248; Young Men's Christian Assoc. v. Dubach, 82 Mo. 475; Mathews v. Wallace, 104 Mo.App. 96. Moreover, where the contract declared upon is required by the Statute of Frauds to be in writing, and it is not stated to be oral, there is a presumption that it is in writing and it is provided by statute that "neither presumptions of law nor matters of which judicial notice is taken need be stated in pleading." Sec. 1833, R. S. 1909; 20 Cyc., 308; Sharkey v. McDermott, 91 Mo. 647; Stillwell v. Hamm, 97 Mo. 579; Van Idour v. Nelson, 69 Mo.App. 523; Walker v. Cooper, 97 Mo.App. 441; Van Meter v. Poole, 119 Mo.App. 296; Railroad v. Wingerter, 124 Mo.App. 426; Lunt v. Biehl, 159 Mo.App. 361. On the other hand, where the contract declared upon is not required by the Statute of Frauds to be in writing, and there is no presumption that it is in writing, it is immaterial whether the contract is, or is not, in writing, since a general allegation in the petition will be sustained by proof of either a verbal or a written contract. McNees v. Railroad, 22 Mo.App. 224. So, too, where a contract is declared upon, it is sufficient to allege generally that the defendants made the agreement without specifically naming the persons who negotiated or executed it, that being an evidential fact which the plaintiff is not required to plead. See & Bro. v. Cox, 16 Mo. 166; Sanders v. Anderson, 21 Mo. 402; Murphy v. Price, 48 Mo. 250; McNees v. Railroad, 22 Mo.App. 224; Anstee v. Ober, 26 Mo.App. 665; Lowe v. Electric Springs Co., 47 Mo.App. 426; Todd v. Minneapolis & St. L. Railway, 37 Minn. 358. (3) A motion to make the petition more definite and certain is a substitute for a special demurrer at common law and the action of the trial court in sustaining defendants' motion to make the petition more definite and certain was equivalent to sustaining a demurrer, which was error. 6 Ency. Pl. & Pr. 274; 14 Ency. Pl. & Pr. 91 (note); 31 Cyc. 644 and 646; Prindle v. Caruthers, 15 N.Y. 425; Nischke v. Wirth, 66 Wis. 319; Gardner v. Armstrong, 31 Mo. 535; Sherwood v. Saxton, 63 Mo. 78; Phillips v. Hardenburg, 181 Mo. 463; Reed v. Crane, 89 Mo.App. 670; see also cases cited under Point II, par. 2. A motion to make more definite and certain will not lie where the pleading is rendered certain by reason of a presumption which the law authorizes respecting it. 31 Cyc. 646; Burkert v. Bennett, 35 Misc. (N. Y.) 318. Nor will the motion be granted when the result would be to compel the party to plead or disclose his evidence. 31 Cyc. 647. (4) The ruling of the trial court was in the teeth of the Missouri statute which provides that "no party shall be required to state evidence in his pleading or to disclose therein the means by which he intends to prove his case." As stated by an eminent authority on code pleading--Judge Bliss--bills of discovery are no longer allowable. Sec. 1818, R. S. 1909; 6 Ency. Plead. & Prac. 275, note 4; 31 Cyc. 647; Railroad v. Kenny, 41 Mo. 271; Alcorn v. Railroad, 108 Mo, 92; Financial Co. v. Railroad, 115 Mo. 619; Commonwealth Co. v. Nunn, 17 Colo.App. 117; Todd v. Railroad, 37 Minn. 358; Cantner v. Auerbach, 20 Misc. (N. Y.) 281; Western Union Tel. Co. v. Wilhelm, 48 Neb. 910.
William Hilkerbaumer and Schnurmacher & Rassieur for respondent.
(1) The judgment from which this appeal was taken was not a final judgment and there is therefore nothing here for this court to review. Akins v. Hicks, 77 S.W. 86; Young v. Stonebreaker, 33 Mo. 117; Beck v. Umstattd, 137 Mo.App. 270; Beck v. Seal, 39 Mo.App. 567; Wagon Co. v. Cornell, 131 Mo.App. 344; Finkelnburg on Appellate Practice (2 Ed.), p. 63. (2) The circuit court did not err in requiring plaintiff to make his petition more definite and certain. Plaintiff pleads a contract without stating whether it was oral or in writing. If the contract pleaded is one which the law requires to be in writing, the legal presumption is it was in writing. The petition, therefore, is good against attack by general demurrer. Nevertheless, defendants, in order to determine how properly to plead, have the right to know whether the contract relied on rests in parol or in writing; and they also have the right to know by whom the contract pleaded was executed on behalf of the defendant corporation. The rule made did not require plaintiff to plead evidence, but only ultimate traversable facts. 31 Cyc, 650; Cockerill v. Stafford, 102 Mo. 57; Atwood v. Rose, 122 P. 929; First Presbyterian Church v. Kennedy, 76 N.Y.S. 284; Citizens Central National Bank v. Munn, 99 N.Y.S. 191; McGehee v. Cooke, 105 N.Y.S. 60; Ruebsam v. Transit Co., 108 Mo.App. 437; Macadam v. Scudder, 127 Mo. 345.
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 art not so persuaded. The statute (Sec. 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. 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...
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