North St. Louis Planing Mill Co. v. Essex

• Decision Date: 02 May 1911
• Citation: 137 S.W. 295,157 Mo.App. 18
• Parties: NORTH ST. LOUIS PLANING MILL COMPANY, Respondent, v. LOUIS ESSEX et al.; LOUIS ESSEX, Appellant
• Court: Missouri Court of Appeals

137 S.W. 295

157 Mo.App. 18

NORTH ST. LOUIS PLANING MILL COMPANY, Respondent, v. LOUIS ESSEX et al.; LOUIS ESSEX, Appellant

Court of Appeals of Missouri, St. Louis

May 2, 1911

Appeal from St. Louis City Circuit Court.--Hon. Matt G. Reynolds Judge.

AFFIRMED.

STATEMENT.--The only question involved on this appeal is the sufficiency of the petition on demurrer. The statement prepared by appellant is complete and fair, and we adopt it as our own as follows The petition in this suit was filed by respondent in the St Louis Circuit Court September 20, 1907, and alleges, in substance, that on or about October 4, 1905, the defendants Henry A. Christophel and William H. Pearson, copartners entered into a contract, in writing, with one Edward C. Roenigke, by the terms of which contract said defendants Christophel & Pearson, contracted with the said Roenigke, in consideration of the sum of $ 6200, to furnish labor and material for the erection of a residence to be built in St. Louis, Mo., according to certain plans and specifications and drawings, and to find, provide, and furnish all labor and materials as shall be fit, proper and sufficient for completing and finishing the said building; also, to pay for all labor and materials furnished upon the said building. The petition further states that contemporaneously with and for consideration as a part of said contract, to-wit, "on said 4th day of October, 1905, said defendants Henry A. Christophel and William H. Pearson delivered to said Edward C. Roenigke a certain bond or writing obligatory, signed and sealed on said day by defendants Louis Essex and Heinrich Schweitzer, said bond being made a part hereof, and a copy of which bond is herewith filed, marked 'Exhibit B,' this plaintiff not having the possession, control or custody of the original of said bond, by the terms of which said contract and bond said defendants Henry A. Christophel, William H. Pearson, Louis Essex, and Heinrich Schweitzer bound themselves, their heirs, executors, administrators, jointly and severally, unto said Edward C. Roenigke, and to all persons who may become entitled to liens under said contract dated October 4, 1905, in the penal sum of $ 6200, to be paid to the said Edward C. Roenigke and to said parties who may be entitled to liens under said contract;" that the bond was conditioned to be void upon the performance of the said contract by the said Christophel & Pearson, copartners; that Christophel & Pearson, copartners, purchased millwork of respondent for the Roenigke building, and failed to pay a balance of $ 332 for said millwork, and that the failure of Christophel & Pearson to pay said bill constituted a breach of said bond, and prayed for judgment against defendants. The bond was not filed with the petition, but a purported typewritten copy was filed, which was not verified by affidavit of plaintiff. Default was granted against defendants Henry A. Christophel and Heinrich Schweitzer for failure to plead, and suit dismissed as to defendant William H. Pearson for want of service. Defendant Louis Essex first filed a motion for an order on plaintiff to file the original or a verified copy of said bond, or to dismiss its suit, which motion the trial court overruled. Defendant Louis Essex then filed a separate demurrer, alleging briefly the following grounds, to-wit: First, that the petition does not state facts sufficient to constitute a cause of action; second, that plaintiff has not legal capacity to sue; third, that there is a defect of parties plaintiff; fourth, that the copy of the bond filed is not verified by affidavit of plaintiff, and that the original is not alleged to be lost or destroyed or other legal reason given for not filing the same. The trial court overruled the demurrer, and defendant Louis Essex elected to stand on his demurrer, and the case was then tried on an inquiry of damages and judgment rendered against all defendants, except William H. Pearson, for $ 6200, and the damages assessed at $ 346.95 and costs. Defendant Essex filed his motion for a new trial and in arrest of judgment, which were overruled by the court, respectively, and he then, in due time, perfected his appeal to this court. The law points involved in this appeal are presented by the demurrer.

Judgment affirmed.

Eugene Buder for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action against this appellant. (a) The petition does not show privity of contract between plaintiff and defendant. Bliss, Code Pleading, sec. 220, 234 and 235; 7 Am. and Eng. Ency of Law, p. 104, note 2; Davis v. Clinton W. W. Co., 54 Iowa 59; Eau Claire, St. L. L. Co. v. Banks et al., 117 S.W. 611. (b) It fails to show that the principal in the bond signed or executed the same, and the surety is thereby released. Bjoin v. Anglim, 97 Minn. 326; Brown v. Jetmore, 70 Mo. 228; Gay v. Murphy, 134 Mo. 98; North St. L. B. & L. Ass'n. v. Obert et al., 169 Mo. 507. (c) It shows that there is no consideration for the bond moving from the respondent obligee, either to the principal or to the surety (this appellant). Bixler v. Ream, 3 Penr. & W. (Pa.) 282; Smith v. Molleson, 148 N.Y. 241; Ring v. Kelly, 10 Mo.App. 411. (d) It alleges a reason other than the statutory ground of lost or destroyed for not filing the original bond or a copy thereof verified by the affidavit of the plaintiff. Sec. 643, R. S. 1899; Railroad v. Knudson, 62 Mo. 569; Birdsall v. Davies, 58 Mo. 138. (2) Plaintiff has not legal capacity to sue, because it appears from the petition that it is not named as obligee in the bond sued on, and does not show that plaintiff sues as a lienor or in any other representative capacity. Bliss, Code Pleadings, secs. 407 to 409; Bulkley v. Big Muddy Iron Co., 77 Mo. 105; Fuggle v. Hobbs, 42 Mo. 537 (3) There is a defect of parties plaintiff, because other joint obligees named in the bond sued on are not made parties. Ryan et al. v. Riddle, 78 Mo. 521; Henry v. Mt. Pleasant Township, 70 Mo. 500; Clark v. Cable and Bofinger, 21 Mo. 223; Slaughter v. Davenport, 151 Mo. 26; Rainey v. Smizer, 28 Mo. 310; Bliss, Code Pleading, sec. 63; Ellis v. Railroad, 130 Mo.App. 221; Butler v. Boynton, 117 Mo.App. 462. (4) The reason for not filing the original bond sued on, or a verified copy thereof, was stated in the petition as follows: "The plaintiff not having the possession, control or custody of the original of said bond." This allegation is demurrable, because it does not give the statutory reason that it has been "lost or destroyed" for not filing the same. Sec. 643, R. S. 1899; Railroad v. Knudson, 62 Mo. 569; Birdsall v. Davies, 58 Mo. 138; Dyer v. Murdock, 38 Mo. 224. (5) A demurrer to a petition admits only such facts as are well and properly pleaded, but does not admit legal conclusions nor plaintiff's understanding of the meaning of the contract sued on. Blaine v. Publishers, Knapp & Co., 140 Mo. 241; Knapp-Stout & Co. v. St. Louis, 156 Mo. 343; Eau Claire-St. L. L. Co. v. Banks et al., 117 S.W. 611. (6) A surety's liability is strictissimi juris, and cannot be extended by implication or presumption. Beers v. Wolf, 116 Mo. 179; Gray v. Davis, 89 Mo.App. 450; Erath v. Allen, 55 Mo.App. 107; Eau Claire-St. L. L. Co. v. Banks et al., 117 S.W. 611; Kiessig v. Allspaugh et al., 13 L. R. A. 418.

Rudolph Schulenburg and Walter Diehm for respondent.

(1) Section 643, Revised Statutes of Missouri 1899, does not apply to the facts here involved. Where all the parties to an instrument sign the same, it need not be filed. Campbell v. Wolf, 33 Mo. 459; Bowling v. Hox, 55 Mo. 446; Kelley v. Therey, 143 Mo. 422; Railroad v. Atkison, 17 Mo.App. 484; Workman v. Campbell, 46 Mo. 308; Widman v. Ins. Co., 115 Mo. 342; Heinrich v. Coal Co., 102 Mo. 231; Withers v. Railroad, 122 Mo. 282. (2) It appears from the petition, as well as from the bond sued on and filed with the petion that Louis Essex, appellant, signed the bond as principal and not as surety; and the court below did not err in overruling defendant's demurrer on the gound that Christophel and Pearson, in whose behalf the bond was given, have not signed the bond. Beers v. Wolf, 116 Mo. 179. (3) The petition sets up facts sufficient to constitute a cause of action to-wit: A contract made between two parties, Louis Essex, appellant, and Edward Roenigke, for the benefit of third parties, and the court below did not err in overruling appellant's demurrer. Lumber Co. v. Banks, 117 S.W. 611; Meyer v. Lowell, 44 Mo. 328; Rogers v. Goswell, 51 Mo. 466; Rogers v. Goswell, 58 Mo. 589; St. Louis Public Schools v. Wood, 77 Mo. 197; State ex rel. v. Gas Light Co., 102 Mo. 472; Ellis v. Harrison, 104 Mo. 270; St. Louis v. Von Phul, 133 Mo. 561; Davis v. Howard, 144 Mo. 671; School District v. Levus, 147 Mo. 580; Lime and Cement Co. v. Wind, 86 Mo.App. 163; Buffalo Forge Co. v. Stock, 105 Mo.App. 484.

CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

CAULFIELD, J. (after stating the facts).

I. Appellant urges that the petition does not state facts sufficient to constitute a cause of action for several reasons.

(a) The first reason which he urges is that the plaintiff has failed to allege facts from which it may be concluded that it was one of the obligees designated in the bond as "all persons who may become entitled to liens under said contract dated October 4, 1905," and therefore no privity is shown to exist between the plaintiff and defendants. Appellant's position is that, in order for plaintiff to have become "entitled" to a lien under the contract, it must not only have shown, as it did, that it furnished material for the building at the instance of the original contractor, but must have shown that it gave notice to the owner, filed its lien account in time,...