Nichols v. R. J. & W. M. Boyd Const. Co.

• Decision Date: 01 February 1915
• Docket Number: No. 11393.,11393.
• Citation: 187 Mo. App. 127,172 S.W. 1183
• Parties: NICHOLS v. R. J. & W. M. BOYD CONST. CO. et al.
• Court: Missouri Court of Appeals

172 S.W. 1183

187 Mo. A. 127

NICHOLS v. R. J. & W. M. BOYD CONST. CO. et al.

No. 11393.

Kansas City Court of Appeals. Missouri.

February 1, 1915.

1. EVIDENCE (§ 31) — JUDICIAL NOTICE — CITY CHARTERS.

Under Const. art. 9, § 16, authorizing cities to frame their charters, providing for the filing of a duplicate certificate of a charter adopted, and declaring that the courts shall take judicial notice thereof, the Kansas City Court of Appeals must take judicial notice of the charter of Kansas City.

2. PARTIES (§ 76) — OBJECTIONS — WAIVER.

Under Rev. St. 1909, §§ 1800, 1804, providing that defendant may demur to the petition when it shall appear that there is a defect of parties plaintiff, and that, when the defect does not appear on the face of the petition, the objection may be taken by answer, and, if no objection is taken by demurrer or answer, defendant shall have waived the same, an objection of defect of parties plaintiff appearing on the face of the petition or want of legal capacity of plaintiff to sue appearing on the face of the petition must be made by demurrer or the defect is waived, and a defect in the petition in an action by a subcontractor of a city contractor against the contractor and his surety, arising from the fact that the suit could be prosecuted only in the name of the city for the use of all persons having unpaid claims for labor and material, appearing on the face of the petition, is waived, unless objection is made by demurrer.

3. PLEADING (§ 433) — PETITION — SUFFICIENCY AFTER VERDICT.

A petition which may be amended to state a good cause of action without changing the cause defectively stated is good after verdict, regardless of the defects which could have been remedied by amendment.

4. PLEADING (§ 433) — PETITION — SUFFICIENCY AFTER VERDICT.

Defect, if any, in a petition arising from the failure to allege that the action was begun within the time fixed by a city charter is curable, and the petition, not attacked by demurrer, is good after verdict.

5. PLEADING (§ 406) — PETITION — DEFECTS — WAIVER.

Defect in a petition arising from the failure to allege that the action was begun within the time fixed by a city charter, appearing on the face of the petition, is waived by defendant answering to the merits.

Error to Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by J. C. Nichols against the Missouri Fidelity & Casualty Company and the R. J. & W. M. Boyd Construction Company. There was a judgment for plaintiff, and defendant Missouri Fidelity & Casualty Company brings error. Affirmed.

John P. McCammon, of St. Louis, and R. M. Sheppard, of Joplin, for plaintiff in error. Haff, Meservey, German & Michaels, of Kansas City, for defendant in error.

JOHNSON, J.

This is an action on a contractor's bond to recover for labor and materials furnished by plaintiff to the contractor in the construction of a public sewer in Kansas City. A trial in the circuit court resulted in a verdict and judgment for plaintiff, and defendant Missouri Fidelity & Casualty Company brought the case to this court on writ of error. The only points made by that defendant are: First, that the action "was not brought in the name of the proper party"; and, second, that the petition fails to state a cause of action.

The suit was begun and prosecuted in the name of J. C. Nichols as plaintiff. The defendants are the R. J. & W. M. Boyd Construction Company, the contractor, and the Missouri Fidelity & Casualty Company, the surety on the contractor's bond. The petition alleges, and the proof shows, that a legal contract for the construction of a public sewer was entered into by Kansas City and the construction company, by the terms of which the sewer was to be built by the company according to plans and specifications on file for the consideration of $49,381, to be paid in special tax bills; that a certain part of the work was done by plaintiff under contract with the construction company; and that the latter is indebted to plaintiff on account of such work, which was completed September 27, 1912. Further it is alleged that in the contract so entered into by the city the defendant Missouri Fidelity & Casualty Company, which executed the contract as surety, being named therein as a party to the contract, guaranteed that the contractor —

"should well and truly perform the covenants contained in said written agreement, and would pay for the work and labor of all laborers, subcontractors, and teamsters, teams and wagons employed on the work, and for all materials used therein, and said defendant Missouri Fidelity & Casualty Company further agreed in said contract that, if the cost of such work and labor and materials was not paid in full by said defendant R. J. & W. M. Boyd Construction Company, then the said defendant Missouri Fidelity & Casualty Company itself agreed to pay for said work, labor, and materials, or any part thereof, which should not be paid by said R. J. & W. M. Boyd Construction Company within ten days after the money for said work, labor, and materials became due and payable. And plaintiff says that it was further provided in said contract that such provision should entitle any and all laborers and teamsters and owners of teams and wagons who might do the work, and parties who might furnish materials on or for the improvements to be done under said contract, to sue and recover from said defendant Missouri Fidelity & Casualty Company the amount due or unpaid to them by said defendant R. J. & W. M. Boyd Construction Company, and said defendant Missouri Fidelity & Casualty Company agreed with Kansas City in said written contract...