Mount Vernon Car Manufacturing Co. v. Hirsch Rolling Mill Co.
| Decision Date | 30 December 1920 |
| Citation | 227 S.W. 67,285 Mo. 669 |
| Parties | MOUNT VERNON CAR MANUFACTURING COMPANY v. HIRSCH ROLLING MILL COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Wilson A. Taylor Judge.
Reversed and remanded.
A. L Hirsch, Abbott, Fauntleroy, Cullen & Edwards and Curlee & Hay for appellants.
(1) The court erred when it ruled that the new contract of June 1917, as set forth in defendant's answer (and as was proven by plaintiff itself, when it introduced the respective letters and telegrams of June 21, 22, 23 and 28, 1917, respectively), did not supersede and do away with the contract which is sued on in the petition. These letters, and all the facts surrounding the matter, were introduced by plaintiff, and it clearly, and without dispute, shows that the contract sued on in the petition had been compromised, abandoned, and a new arrangement entered into by the parties, as shown by the aforesaid June letters and telegrams, which is the basis of the contract set up in the answer as being a different contract from that set forth in the petition, and which said amended or substituted contract was the only one existing between the parties at the time the suit was commenced. That suit should have been brought, if at all, upon the substituted or amended contract, and not on the old contract, which is set forth in the petition, is the law of this State. The suit should have been brought on the substituted contract. Carman v. Hannah, 182 Mo.App. 365; Henning v. Ins. Co., 47 Mo. 430; Gifford v. Willman, 187 Mo.App. 38; Chouteau v. Jupiter Iron Works, 94 Mo. 388; Potato Growers' Assn. v. Clemens, 193 Mo.App. 656; McCoy v. Milbury, 82 N. J. L. 697; Flegal v. Hoover, 156 Pa. 276; Dieudonne v. Arco Co., 116 N.W. 1067; Tuttle v. Metz Co., 229 Mass. 272; Warden v. Houston, 92 Mo.App. 373; St. Croix Co. v. Seacoast Co., 114 Me. 521; Napa Co. v. Daubney, 63 Minn. 112. (2) The court erred when it refused, at the close of all the evidence, to give defendant's request for an instruction, that, upon the law and the evidence of the case, plaintiff could not recover "upon the cause of action, which is sued on in its petition, and your verdict upon that cause of action which is set forth in the petition of plaintiff must be for the defendant." The case, as made by plaintiff's own evidence, shows that the contract sued on in the petition had been wiped out by the new contract, and suit should have been on the new, or substituted, contract. Conran v. Hannah, 182 Mo.App. 365; Henning v. Ins. Co., 47 Mo. 430; Gifford v. Willman, 187 Mo.App. 38; Ostrander v. Messner, 223 S.W. 441; Baase v. Bert, 43 Mo. 280; Lanitz v. King, 93 Mo. 518; Chouteau v. Jupiter Iron Works, 94 Mo. 388; Potato Growers v. Clemens, 193 Mo.App. 656. (3) The original contract, as set forth in the petition, no longer existed, even though the new contract was unperformed. Sioux City Co. v. Sioux City Co., 110 Iowa 396; McCoy v. Milbury, 82 N. J. L., 697; Flegal v. Hoover, 156 Pa. 276; Dieudonne v. Arco Co., 166 N.W. 1067; Tuttle v. Metz Co., 229 Mass. 272; Warden v. Wooster, 92 Mo.App. 373; Metropolitan Co. v. Kamioner, 138 N.Y.S. 1067; St. Croix Co. v. Seacoast Co., 114 Me. 521; Napa Co. v. Daubner, 63 Minn. 112; Hughes v. Brennan, 24 D. C. App. 90. (4) Plaintiff must recover on the cause of action set up in his petition, and, if the answer set up on another cause of action, even though it shows a right of recovery in plaintiff, yet plaintiff cannot recover upon it until plaintiff has amended his petition. Perry v. Barrett, 18 Mo. 144; Reed v. Bott, 100 Mo. 62. (5) A case must be disposed of on the issues tendered, and upon none other. Proof cannot be considered which does not have its foundation in the allegation made in the pleadings, even though such outside facts are proven. Schworm v. Fraternal Society, 168 Iowa 579; Hartwig v. Am. Co., 77 N.Y.S. 535. (6) The new agreement of June 21, 22, 23 and June 28, 1917, was either a compromise and settlement or a novation, ending all previous liability of defendant upon any other and previously existing agreement, which may have theretofore existed between the parties or all of them. McCoy v. Milbury, 82 N. J. L. 697. Such an agreement was "a compromise" of all rights therefore existing between the parties. "The parties to a contract may, at any time, rescind it, either in whole or in part, by mutual consent, and the surrender of their mutual rights is a sufficient consideration." Flegal v. Hoover, 56 Pa. 276; Warden v. Houston, 92 Mo.App. 373; St. Croix Co. v. Seacoast Co., 114 Me. 521. The new contract, if honestly made, to settle a bonafide disagreement between the parties, is good and binding upon the parties. Sunset Orchard Co. v. Sherman Co., 121 Minn. 5; Metropolitan Shirt Co. v. Nanioner, 138 N.Y.S. 1067. (7) The new contract was supported by a full and complete consideration. Laughman v. Pipe Co., 114 S.W. 453 (8) The plaintiff failing to object or except to the giving of this instruction and making no motion for a new trial in this case, and plaintiff not having taken any appeal from the verdict which the jury rendered in favor of the defendant for $ 12,720, plaintiff thereby acquiesced in and accepted that judgment, in favor of the defendant as being correct, and it is final. Mississippi Co. v. Somerville, 85 Mo.App. 265. The court can affirm the judgment upon the counterclaim and reverse the judgment in favor of plaintiff. R. S. 1909, sec. 1878. The court can reverse the case as to the issues involved in plaintiff's cause of action without disturbing the verdict, which virtually was by consent, in favor of the defendant. Schroeder v. Edwards, 267 Mo. 486; Crow v. Williams, 140 Mo.App. 454; Connelly v. Railroad, 169 Mo.App. 283; Boeckler v. Ry. Co., 10 Mo.App. 448; Hodges v. Bryant, 187 S.W. 624; McCall v. Jones, 85 Mo.App. 265. The verdict and judgment in favor of the defendant is a finality, and the plaintiff not having objected to that judgment, or appealed therefrom, it is binding. LeVee v. LeVee, 183 P. 775.
Alroy S. Phillips and Bryan, Williams & Cave for respondent.
(1) The sale of the iron and the sale of the scrap in the original agreement are independent covenants, upon each of which recovery can be had. Smith v. Crews, 2 Mo.App. 272; Butler v. Manny, 52 Mo. 505; Turner v. Mellier, 59 Mo. 535; Strohmeyer v. Zeppenfeld, 28 Mo.App. 272; Sawyer v. Christian, 40 Mo.App. 299; Springfield Seed Co. v. Walt, 94 Mo.App. 85; Hayden v. Railroad, 117 Mo.App. 95, 105; Coal Co. v. Packing Co., 138 Mo. App 281; Fire-Proof Window Co. v. Cornice Co., 181 Mo.App. 326. (2) The attempted compromise does not bar recovery on the original agreement. (a) There was no compromise, because the minds of the parties never met on its terms. 13 C. J. 263, 272. (b) There was no consideration for the alleged compromise because appellant was already bound by the original agreement to do more than it agreed to do in the alleged compromise. Lingenfelder v. Brewing Co., 103 Mo. 592; Koslosky v. Bloch, 191 Mo.App. 259. (c) The alleged compromise was never fully performed, and the new promises therein, as distinguished from their performance, were not accepted in lieu of the original agreement. There must be both accord and satisfaction. 1 C. J. 530, 567, 572; Goff v. Mulholland, 28 Mo. 399; Curtis v. Browne, 63 Mo.App. 431; Swofford Bros. Co. v. Gross, 65 Mo.App. 59; Gerhardt Realty Co. v. Assurance Co., 94 Mo.App. 359; Carter v. Railroad, 136 Mo.App. 724; Holland v. Rongey, 168 Mo. 19; McCormick Harvesting Co. v. Blair, 146 Mo.App. 379; Law Book Co. v. Corbett, 162 Mo.App. 74; Lumber Co. v. Gibson, 178 Mo.App. 706; Elliott v. Thomas, 185 Mo.App. 31; Erwin v. Jones, 192 Mo.App. 330; People's Bank v. Railroad, 192 Mo.App. 626; Simmons v. Printing Co., 201 Mo.App. 140. (3) Appellant is estopped to question the validity of the original agreement or the action of the trial court in submitting the case to the jury on the original agreement. Any errors in this respect were waived by the appellant when it requested and the court gave an instruction directing a verdict for appellant on its counterclaim on the same theory, and particularly is this true with the appellant here insisting upon holding that verdict. (a) A counterclaim is the same as a petition, and one asserting it has the same right as a plaintiff, to abandon it at any time before submission to the jury. Waldron v. Merseal, 162 Mo.App. 380. (b) While a defendant does not waive his objection to the refusal of the court to give his instructions by asking for their instructions to meet those given for the plaintiff, the same rule does not apply to a plaintiff or to a defendant urging a counterclaim. Everhart v. Bryson, 244 Mo. 507; Seneca Co. v. Ellison, 184 S.W. 1177; Addison v. Talbert, 183 S.W. 364; Horse & Mule Co. v. Hatfield, 175 Mo.App. 296. (c) A party is estopped to predicate error on the submission of his opponent's case on the same theory that he has requested the submission of his own. 4 C. J. 712; Hogan v. Brady, 155 Mo. 659; Phelps v. City of Salisbury, 161 Mo. 1. (d) Where one has with knowledge of the facts, asserted a particular claim, title or right, he cannot afterwards assume a position inconsistent with such claim to the prejudice of another. Curtis v. Moore, 162 Mo. 442; Langsdorf v. Field, 36 Mo. 440; 16 Cyc. 785. (e) The appellant has accepted, and is seeking to hold its verdict which resulted from such acceptance, the benefits of the original contract, and it is thereby estopped to deny the existence, validity and effect of that contract. 16 Cyc. 787; State to use v. Laundry Co., 190 S.W. 953; Muehlbach v. Railroad, 166 Mo.App. 314; Cadematori v. Greager, 160 Mo. 352.
WHITE, C. Railey and Mozley, CC., concur.
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