Pemberton v. Ladue Realty & Const. Co.

• Decision Date: 06 June 1944
• Docket Number: No. 26571.,26571.
• Citation: 180 S.W.2d 766
• Court: Missouri Court of Appeals
• Parties: NORMAN W. PEMBERTON, RESPONDENT, v. LADUE REALTY & CONSTRUCTION COMPANY, A CORPORATION, AND JAMERSON C. McCORMACK, APPELLANTS.

180 S.W.2d 766

NORMAN W. PEMBERTON, RESPONDENT, v. LADUE REALTY & CONSTRUCTION COMPANY, A CORPORATION, AND JAMERSON C. McCORMACK, APPELLANTS.

No. 26571.

St. Louis Court of Appeals, Missouri.

Opinion filed June 6, 1944.

Motion for Rehearing overruled June 23, 1944.

Appeal from the Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

REVERSED.

S. Sylvan Agatstein and Don O. Russell for appellants.

H.J. Mueller of Counsel.

(1) Plaintiff is bound by the theories adopted by him in the trial of the case. 33 C.J. 869; Stoll v. First National Bank of Independence, 134 S.W. (2d) 97; White v. Kentling, 134 S.W. (2d) 39; Weiner v. Mutual Life Insurance Co., 170 S.W. (2d) 174; Benz v. Powell, 338 Mo. 1032, 97 S.W. (2d) 877; Schneider v. American Car & Fdry. Co., 322 Mo. 147, 14 S.W. (2d) 603; Fink v. Kansas City Southern Ry. Co., 143 S.W. 568. (2) Plaintiff is bound by the opening statement made by his counsel. Republic Steel Corporation v. Atlas House Wrecking Co., 113 S.W. (2d) 155, 232 Mo. App. 791; Eaton et al. v. Curtis, 4 S.W. (2d) 819, 319 Mo. 660; Wood v. Wells, 270 S.W. 332; Wonderly v. Little & Hays Investment Co., 184 S.W. 1188; Oscanyan v. W.R. Arms Company, 103 U.S. 261, 26 L. Ed. 539. (3) The separate demurrers of defendants at the close of plaintiff's case and at the close of the whole case should have been sustained, because an action at law between partners cannot be maintained until there has been an accounting and a balance struck, and no member of a partnership or joint venture is entitled to any compensation for his services rendered to the common enterprise, in the absence of a specific agreement to that effect. 33 C.J. 860, 866, 869; 47 C.J. 425, 786, 812; Lengle v. Smith, 48 Mo. 276; Reily v. Russell, Bennett's Adm., 34 Mo. 524; Springer v. Cabell, 10 Mo. 641; Stothert v. Knox, 5 Mo. 112; Glaus v. Gosche (Mo. App.), 118 S.W. (2d) 842; Dierks et al. Lumber Co. v. Bruce, 239 S.W. 133; Powell Hardware Co. v. Mayer, 110 Mo. App. 14, 83 S.W. 1008; Koontz v. Whitaker, 111 S.W. (2d) 197; Bingham v. Tinsley, 149 Mo. App. 467, 130 S.W. 506; Bingham v. Tinsley, 160 Mo. App. 607, 140 S.W. 1193; Creath v. Nelson Distilling Co., 70 Mo. App. 296; Owsley v. Owsley, 34 S.W. (2d) 558; Hindman v. Secoy, 218 S.W. 416; Gaston v. Kellogg, 91 Mo. 104, 3 S.W. 589; Inglis v. Floyd, 33 Mo. App. 565; Kaiser v. Wilhelm, 2 Mo. App. 596; McKnight v. McCutcheon, 27 Mo. 436; Laney v. Fickel, 83 Mo. App. 60; Bambrick v. Simms, 33 S.W. 445, 132 Mo. 48, 14 S.W. 935, 102 Mo. 158; Lyons v. McMurray, 8 S.W. 170, 95 Mo. 23; Denny v. Guyton, 40 S.W. (2d) 562; Chandler v. R.R., 251 Mo. 592-599, 158 S.W. 35, 36. (4) Where the defendants may be severally liable, the plaintiff may proceed against either defendant, but he cannot hold both. 2 C.J. 529; Peters v. McDonough, 37 S.W. (2d) 530, 327 Mo. 487; Farmers Bank of Mo. v. Bayless, 41 Mo. 274; Carmen v. Harrah, 182 Mo. App. 365, 170 S.W. 388; Squire v. Drozda Realty Co., 288 S.W. 988; Bovard v. Owen, 30 S.W. (2d) 154; Caruthersville Hdw. Co. v. Pierce et al., 229 S.W. 238. (5) Separate demurrers of defendant McCormack at the close of the plaintiff's case and at the close of the whole case should have been sustained. Bridges v. Rice, 99 S.W. (2d) 531; Heckman v. Van Grafeiland, 291 S.W. 190; Carmen v. Harrah, 182 Mo. App. 365, 170 S.W. 388; Negbauer v. Fogel Const. Co., 58 S.W. (2d) 346; Hunt v. Sanders, 313 Mo. 169, 281 S.W. 422; Western Cement Co. v. Jones, 8 Mo. App. 377; Gibson v. Baskett, 178 S.W. 237; Ray County Sav. Bank v. Hutton, 224 Mo. 42, 123 S.W. 47; Gordon v. Andrews, 2 S.W. (2d) 809; 2 C.J. 923; 14 C.J. 269, 272. (6) Separate demurrers at the close of the plaintiff's case and at the close of the entire case on behalf of the corporation should have been sustained, because a corporation cannot be held liable without proof that it has expressly assumed the obligation or there has been a novation. Kliethermes Motor Co. v. Cole Motor Service Co., 119 S.W. (2d) 84; Queen City Carpet & Furniture Co. v. Crawford, 127 Mo. 356, 364, 30 S.W. 163; Negbauer v. Fogel Const. Co., 58 S.W. (2d) 346; 14 C.J. 272. (7) Plaintiff cannot waive a contract and sue in quantum meruit, where his compensation is to participate in profits, and he cannot recover compensation in any other form than his share of the profits. Moore v. Gaus & Sons Mfg. Co., 113 Mo. 98, 20 S.W. 975; 47 C.J. 786; 33 C.J. 869; Gaston v. Kellogg, 91 Mo. 104, 3 S.W. 589; Inglis v. Floyd, 33 Mo. App. 565; Reily v. Bennett, 34 Mo. 524. (8) Where plaintiff waives his contract and proceeds in quantum meruit, he cannot recover more than the contract price, and where the contract is limited to nominal damages, his recovery in quantum meruit cannot exceed that amount. Stout v. St. Louis Tribune Co., 52 Mo. 342; Williams v. Chicago, S.F. & C. Ry. Co., 112 Mo. 463, 20 S.W. 631; Perles & Stone v. Childs Co., 104 S.W. (2d) 361, 340 Mo. 1125; American Surety Co. v. Fruin Bambrick Const. Co., 166 S.W. 333, 182 Mo. App. 667; Mansur v. Botts, 80 Mo. 651; Aldrich v. Shelton's Estate, 86 S.W. (2d) 395; Beagles v. Robertson, 135 Mo. App. 306, 115 S.W. 1042; 5 C.J. 1389; Moore v. Gaus Mfg. Co., 113 Mo. 98, 20 S.W. 975; Shoemaker v. Johnson, 204 S.W. 962, 200 Mo. App. 209; Haverstick v. Brookshire, 28 S.W. (2d) 432; Hutchinson v. Swope, 256 S.W. 134; Graves v. Merch. & Mech. Mut. Fire Ins. Co., 139 S.W. (2d) 1039, 235 Mo. App. 543. (9) Where a plaintiff sues on a contract alleging an interest in profits a recovery for more than nominal damages should be denied, because the contemplated profits were purely contingent and conjectural, although plaintiff sustained a substantial loss. Sloan v. Paramore, 181 Mo. App. 611, 164 S.W. 662; United Iron Workers v. Twin City Ice & Creamery Co., 295 S.W. 109, 317 Mo. 125; Callaway Mng. & Mfg. Co. v. Clark, 32 Mo. 305; Morrow et al. v. Mo. Pac. Ry. Co., 123 S.W. 1034, 140 Mo. App. 200; Weber Implement Co. v. Harvesting Machine Co., 268 Mo. 363, 187 Mo. 875; Taylor v. McGuire, 12 Mo. 313, 13 Mo. 517. (10) The instructions given on behalf of plaintiff are erroneous, because they go beyond the pleadings. Martin v. John Clay & Co., 167 S.W. (2d) 409; Wild v. Pitcairn, 149 S.W. (2d) 800, 347 Mo. 915; Tucker v. Hibernian Bk. & Tr. Co., 212 Mo. App. 88, 251 S.W. 406-409; Krelitz v. Calcaterra, 53 S.W. (2d) 909; Stewart v. Wenger, 125 S.W. (2d) 537, 539. (11) Plaintiff's instructions are erroneous, because all the necessary elements of plaintiff's case were not included in his principal instruction. Griffith v. Delesco Meat Prod. Co., 145 S.W. (2d) 431, 347 Mo. 28; Wagner v. Edison Elec. Co., 75 S.W. 966, 177 Mo. 44; American Surety Co. v. Fruin Bambrick Const. Co., 16 S.W. 333, 182 Mo. App. 667; Williams v. Chi. S.F. & C. Ry. Co., 112 Mo. 463, 20 S.W. 631; Moore v. Gaus Mfg. Co., 113 Mo. 98, 20 S.W. 975; State ex rel. Jenkins v. Trimble et al., 291 Mo. 227, 236 S.W. 651; Fleming v. McMahan Const. Co., 45 S.W. (2d) 952; Stout v. St. Louis Tribune Co., 52 Mo. 342; Perles & Stone v. Childs Co., 104 S.W. (2d) 361, 340 Mo. 1125. (12) Rights between joint venturers are governed by the same rules that govern partnerships. Hobart Lee Tire Co. v. Grodsky, 46 S.W. (2d) 859, 329 Mo. 706; 33 C.J. 842; Boles v. Akers, 116 Okl. 266, 244 Pac. 162; Central Trust Co. v. Creel, 184 Ky. 114, 211 S.W. 421. (13) The verdict is contrary to and is not supported by any evidence and should be reversed. Hamilton v. St. L. & S.F. Ry., 299 S.W. 787; Clark v. Atchison Eastern Bridge Co., 62 S.W. (2d) 1079; Paschea v. Term. R.R., 165 S.W. (2d) 691; Adelsberger v. Scheehy, 58 S.W. (2d) 644. (14) The verdict against the defendant corporation on its counterclaim is the result of passion and prejudice, and should be set aside. Clark v. Atchison Bridge Co., 62 S.W. (2d) 1079.

No brief for respondent.

ANDERSON, J.

Plaintiff Norman W. Pemberton instituted this suit, in the circuit court of the County of St. Louis, by filing a petition in two counts against Jamerson C. McCormack and the Ladue Realty & Construction Company. The first count of the petition was based on breach of contract, and the second count was based on quantum meruit for services rendered. The trial below resulted in a verdict and judgment against both defendants, for $7033, on the second count of the petition, and for plaintiff on the counterclaim filed by defendant McCormack. For that judgment defendants appealed to this court.

The first count of the petition alleged that in the spring of 1938 plaintiff and defendant McCormack entered into an oral contract respecting the purchase and development of a certain tract of land, twenty-five acres more or less, located in the city of Ladue, and also a tract of two and one-half acres located in University City; that by said contract it was understood and agreed (1) that the defendant McCormack would undertake the financing necessary for the purchase of said real estate, and for its development, subdivision, and sale; (2) that said financing would be acomplished by the formation of a corporation and the sale of the stock therein to said defendant McCormack and certain members of his family; (3) that said corporation would purchase the property, take title in its own name, and take care of all financing in connection with the development, subdivision, and sale of the said property; (4) that plaintiff would devote all of his time and attention exclusively to the promotion and sales work necessary for the laying out and subdividing of the said property, and the sale of lots, tracts, houses, buildings, and improvements therein; and (5) that for such services plaintiff would receive one-half of the proceeds from the sale of the said lots, tracts, houses, buildings, and improvements, after the deduction of all expenses incurred by the said corporation in the purchase, development, and operation of said subdivision.

The first count of the petition further alleged that pursuant to said agreement defendant McCormack organized...