Myers and Guthrie v. Union E.L. & P. Co.
| Citation | 125 S.W.2d 950 |
| Decision Date | 06 March 1939 |
| Docket Number | No. 19246.,19246. |
| Court | Court of Appeal of Missouri (US) |
| Parties | R.S. MYERS AND CHASE SPICER GUTHRIE, EXECUTRIX OF THE LAST WILL & TESTAMENT OF M.L. GUTHRIE, DECEASED, RESPONDENTS, v. UNION ELECTRIC LIGHT & POWER COMPANY, A CORPORATION, APPELLANT. |
Appeal from Miller Circuit Court. — Hon. W.M. Dinwiddie, Special Judge.
REVERSED.
Baker & Baker, D.M. Cuthbertson and Cave & Hulen for respondents.
(1) The petition does not state a cause of action for either fraud or mistake and the general demurrer and the objection to the introduction of any evidence should have been sustained. No facts constituting either fraud or mistake were pleaded. Smith v. Sims, 77 Mo. 269-274; Reed v. Bott, 100 Mo. 62; Hoester v. Sammelman, 101 Mo. 619; Mateer v. Railroad, 105 Mo. 320; Williams v. Railroad, 112 Mo. 463, l.c. 495-496; United Construction Co. v. St. Louis, 334 Mo. 1006, 1023; Elliott v. M.K. & T. Ry. Co., 74 Fed. 707, 711, 712; Railroad v. March, 114 U.S. 549, 553; Railroad v. Price, 138 U.S. 185, 195; Lewis v. Railway, 49 Fed. 708, 710; Mundy v. Louisville, etc., Co., 67 Fed. 633; Cook v. Foley, 152 Fed. 41, 53; Vanderwerker v. Vermont C.R. Co., 27 Vt. 130, 136-137; Choctaw, etc., Co. v. Newton, 140 Fed. 225; Palmer v. Clark, 106 Mass. 373, 389; Herrick v. Vermont, etc., Co., 27 Vt. 673, 684; Davis v. Gibson, 70 Ill. App. 273, 274. (2) The action is barred by the Statute of Limitations, sec. 862, R.S. Mo. 1929, because commenced March 18, 1937, more than five years after accrual of the cause of action, which accrual was on February 1, 1931 (according to plaintiffs' petition), and, therefore, the Court erred in overruling the plea in bar, overruling the motion for judgment on the ground the action is barred by limitation and in refusing to give appellant's instruction F directing a verdict because respondents' action is barred by limitation. (1) The suit is on quantum meruit only, which is on an implied promise. 51 Corpus Juris, p. 116; McCormick v. Fidelity etc. Co., 114 Mo. App. 460, 465; Mansur v. Botts, 80 Mo. 561; Williams v. Railroad, 112 Mo., l.c. 491; Moore v. Mfg. Co., 113 Mo. 99; Redman v. Adams, 165 Mo. 60; Wade v. Nelson, 119 Mo. App. 278, 279; Eyerman v. Mt. Sinai Assn., 61 Mo. 489, 491; Yeats v. Ballentine, 56 Mo. 530; Johnson v. Pump Co., 274 Mo. 414, 449-450. Therefore the first subdivision of section 862, supra, covering implied contracts, applies. (2) The fifth subdivision covering fraud does not apply because fraud was not properly pleaded. (3) Also fraud was dropped from the case by plaintiffs' instruction No. 1. (4) Further, if the fifth subdivision did apply, respondents are nevertheless barred because, according to their own testimony, they knew the engineers' estimates were much too small all through the work, beginning in December, 1929, and ending in May, 1930. They had knowledge in 1929. Mester v. Jones, 286 Mo. 56, 57; Hays v. Smith, 213 S.W. 451, 455; Shrock v. Duncan, 189 S.W. 610. (5) Any doubt that the suit is on quantum meruit is abated by the fact that respondents did not perform the contract and cannot sue thereon, but must sue on quantum meruit. Myers et al. v. Union Electric Light & Power Co., 334 Mo. 662; Yeats v. Ballentine, 56 Mo. 530; Johnson v. Pump Co., 274 Mo. 414, 449-50. (6) The decision in Myers et al. v. Union Electric etc. Co., supra, is pleaded as res judicata on the foregoing point, i.e., that respondents did not perform the contract and it is here res judicata. Black on Judgment, Sec. 504; Southern, etc., Co. v. U.S., 168 U.S. 1; Cromwell v. Sac, 94 U.S. 351; Case v. Sipes, 280 Mo. 110, 120-121; Baumhoff v. Railroad, 205 Mo. 248, 262-269; Freeman on Judgm. (5 Ed.), Sec. 639; 34 Corp. Jur., p. 760; Chouteau v. Gibson, 76 Mo. 38, 51; Oklahoma v. Texas, 256 U.S. 70, 88; Freeman on Judgm. (5 Ed.), Sec. 763. (7) A prior action was by the Circuit Court of Miller County adjudged dismissed for lack of prosecution on January 22, 1935, and the pending suit was not commenced until March 18, 1937, more than two years thereafter, so that the one-year savings in case of nonsuit provided by Section 874, R.S. Mo. 1929, does not apply; this for the following reasons: (a) The dismissal was an involuntary nonsuit. Meddis v. Wilson, 175 Mo. 126, 133, 134; Scanlon v. Kansas City, 28 S.W. (2d) 84, l.c. 93, par. (10); State ex rel. Union Electric, etc., Co. v. Sevier, Judge, 339 Mo. 732. (b) This suit in quantum meruit is not the same cause of action as that of the first suit, which was on contract. McCormick v. Fidelity, etc., Co., supra; Wade v. Nelson, supra; Mansur v. Botts, supra; Williams v. Railroad, supra; Moore v. Mfg. Co., supra; Redman v. Adams, supra; Eyerman v. Mt. Sinai Assn., supra; Yeats v. Ballentine, supra; Johnson v. Pump Co., supra; Myers et al. v. Union Electric etc. Co., supra. (c) And being on a different cause of action the one-year savings could in no event apply. Kissane v. Brewer, 208 Mo. App. 244; St. Charles Sav. Bank v. Thompson, 284 Mo. 72. (d) The attempted action in the Circuit Court of Miller County to reinstate the dismissed suit at the following May Term, 1935, and the placing of the case on the docket for the September Term, 1935, were completely void and did not affect the judgment of dismissal entered at the January Term, 1935 (on January 22, 1935). State ex rel. Union Electric etc. Co. v. Sevier, Judge, supra. (e) The filing of the prohibition suit, State ex rel. v. Sevier, in the Missouri Supreme Court on September 13, 1935, the issuance of the preliminary rule on October 18, 1935, and the pendency of the suit until issuance of the permanent rule on November 12, 1936, did not have the effect of reinstating the dismissed cause as a pending cause in the Miller County Circuit Court; but, on the contrary, the opinion in State ex rel. v. Sevier, decides that the dismissed suit was finally ended on January 22, 1935, the day of the judgment of dismissal, and never thereafter had legal existence. State ex rel. v. Sevier, supra, l.c. 735, l.c. 737. Also respondents had the right to file a new suit at any time after dismissal and while the prohibition suit was pending. The preliminary rule prohibited only the Judge and only from proceeding with the dismissed action. 50 Corp. Jur., p. 712, Sec. 142, note 63; subds. (b) and (c); State ex rel. v. Ross, 136 Mo. 259. (f) State ex rel. v. Sevier was a suit to prohibit proceedings in the dismissed suit (because it had been dismissed without any action by appeal or otherwise that could supersede or affect the judgment of dismissal) and was not an appeal by respondents from the judgment of dismissal, which would have superseded the judgment of dismissal and have made the dismissal date from the day of affirmance on appeal by the Appellate Court. Hence, Chouteau v. Rowse, 90 Mo. 191; Hewitt v. Steele, 136 Mo. 327, and Adams v. Railway, 326 Mo. 1006, relied on by respondents at the trial, have no application here. (3) There was no proof of mistake by the engineers charged with estimating the work done; and the Court erred in refusing to direct a verdict for defendant at the close of plaintiffs' evidence. Chapman v. Kansas City, etc., Co., 114 Mo. 542, l.c. 547, l.c. 549-50; McAvoy v. Long, 113 Ill. 147; Torrance v. Amsden, Fed. Cas. No. 14103; Bumpass v. Webb, 4 Post (Ala.) 65; Pleasants v. Ross, 1 Wash. (Va.) 156. There was no evidence given to impeach the engineers' estimates as being the result of mistake as is required by the foregoing cases. (4) The Court erred in refusing to direct a verdict for appellant at the close of all the evidence, for the reason that if respondents' evidence had any effect it was only that of a rebuttable presumption of fact. (a) If respondent's evidence had any probative force it was only because the estimates of acreage made by Meyers and M.L. Guthrie before they made the contract were larger than the work estimates made by the engineers, that of a rebuttable presumption of fact. Downs v. Horton, 287 Mo. 414, l.c. 431-435; Guthrie v. Holmes, 272 Mo. 215, 233, 234; Stack v. General Baking Co., 283 Mo., l.c. 420-421. (b) This did not shift the burden of proof, but only the burden of bringing forward evidence. 1. Under the contract, and without any claim of fraud or mistake, on Major Collins' part, his findings that respondents did not clear the whole area, are conclusive. 6 R.C.L. 956-961, Secs. 335-338; 9 Corp. Jur. 755-758; 54 A.L.R. 1255, note; State ex rel. v. Dickey, 280 Mo. 536, l.c. 550; Chapman v. Railway, 114 Mo. 542; Densmore v. Livingston Co., 60 Mo. 241. 2. As an administrative officer under the Federal Power Commission, his findings are conclusive and beyond attack. Nishimuru Ekiu v. U.S., 142 U.S. 651; Belcher v. Linn, 24 How. 508; U.S. v. California etc. Co., 148 U.S. 31; U.S. v. Ju Toy, 198 U.S. 253; Bates v. Payne, 194 U.S. 106. (5) The Court erred in refusing to admit in evidence the contract between appellant and Stone & Webster Engineering Corporation (Exhibit 16), which showed that the engineers charged with measuring and certifying estimates were employees of an independent contractor. This was important as bearing on the good faith of the engineers. (6) Plaintiffs' instruction 1 is erroneous in submitting the following to the jury: (a) That appellant's engineers and representatives approved respondents' work; when, first, only Stone & Webster had engineers there and, second, only the representative of the United States had the power of approval of the work. Myers et al. v. Union, etc., Co., supra, l.c. 630-631. (b) That it became necessary to meet the requirements of the United States that appellant perform work respondents' had contracted to do; this, so as to shift respondents' breach to appellant as giving rise to a contract on appellant's part. Myers et al. v. Union, etc., Co., supra, l.c. 631. (c) That the Government approved the clearing of land in the area, as if the Government had approved respondents' work; a thing precisely contrary to...
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