Pemberton v. Ladue Realty & Const. Co.

• Decision Date: 14 November 1949
• Docket Number: 41354
• Citation: 224 S.W.2d 383,359 Mo. 907
• Parties: Norman W. Pemberton, Appellant, v. Ladue Realty & Construction Company, a Corporation, and Jamerson C. McCormack, Respondents
• Court: Missouri Supreme Court

224 S.W.2d 383

359 Mo. 907

Norman W. Pemberton, Appellant, v. Ladue Realty & Construction Company, a Corporation, and Jamerson C. McCormack, Respondents

No. 41354

Supreme Court of Missouri

November 14, 1949

Appeal from Circuit Court of City of St. Louis; Hon. James E McLaughlin, Judge.

Reversed and remanded.

SYLLABUS

The trial court erroneously dismissed plaintiff's action on an express contract in the nature of a joint adventure on the ground that a judgment for defendants in a prior action in quantum meruit was res judicata.And plaintiff is not estopped by electing to pursue a mistaken remedy.Reversed and remanded for a trial on the merits.

Herbert W. Ziercher and Wm. J. Becker for appellant.

(1) A distinction exists between the legal theories of "Election of Remedies" and "Res Adjudicata."The former operates to preclude a party who has made a choice of one remedy from later resorting to an inconsistent remedy.The latter proceeds upon the principle that a person shall not litigate an action which has once been litigated.18 Am. Jur., Election of Remedies, sec. 8, p. 132;Peters v. Bain,133 U.S. 670, 33 L.Ed. 676, 10 S.Ct. 354;U.S. v. Oregon Lumber Co.,260 U.S. 290, 67 L.Ed. 261, 43 S.Ct. 100.(2)The Court of Appeals in the earlier appeal held that plaintiff(appellant) could not sue his partner in an action based on quantum meruit.The fundamental legal reason behind this holding is that there cannot be an expressed and implied contract existing at the same time.12 Am. Jur., Contracts, sec. 7, p. 505;Klebe v. U.S.,262 U.S. 188, 68 L.Ed. 244, 44 S.Ct. 58;Verdi v. Helpers St. Bank,57 Utah 502, 196 P. 225, 15 A.L.R. 641.(3) When a litigant mistakenly pursues a supposed remedy which is not available to him he does not elect between two remedies.18 Am. Jur., Election of Remedies, sec. 51, p. 167, sec. 24, pp. 146, 148.(4) A mistake on plaintiff's part in pursuing a nonexistent remedy is not an "election."Fitzgerrell v. Federal Tr. Co., 187 S.W. 600.(5) A judgment of dismissal such as was entered on the mandate of the St. Louis Court of Appeals in the earlier case could not be set up to support a claim of res adjudicata because there was no trial on the merits.For the same reason there could be no election of remedies when the supposed remedy does not exist.The theory of "mistake of remedy" is as well established as the theory of "election of remedies."Motley v. Dugan,191 S.W.2d 979;Henderson Tire & Rubber Co. v. Gregory,16 F.2d 589;Johnson-Brinkman Co. v. Mo. Pac. Ry. Co.,126 Mo. 344;Borserline v. Maryland Casualty Co., 112 F.2d 409.

Don O. Russell for respondents.

(1) The controversy has been fully adjudicated in the former proceeding, and is res judicata.Powell v. City of Joplin,335 Mo. 562, 73 S.W.2d 408;Autenrieth v. Bartley,176 S.W.2d 546;Smith v. Smith,157 S.W.2d 571;Norwood v. Norwood,353 Mo. 548, 183 S.W.2d 812;Healey v. Moore,100 S.W.2d 601;Finnegan v. Mo. Pacific Railroad,244 Mo. 608, 149 S.W. 612.(2)A party cannot, either in the course of litigation or in dealings in pais, occupy inconsistent positions, or proceed on irreconcilable claims of right.Tower v. Compton Hill Employment Co.,192 Mo. 379, 91 S.W.2d 104;Kimmel v. Captain,24 N.E. 435, 437;Cook v. Covey-Ballard Motor Co.,69 Utah 161, 235 P. 196;Friedman v. Swift & Co.,18 F.Supp. 596;Bell v. Butte Investment Co.,250 S.W. 381;U.S. v. Oregon Lumber Co., 260 U.S. 290, 67 L.Ed. 261.

OPINION

Tipton, P.J.

The parties to this action held a pre-trial conference in the chambers of James E. McLaughlin, Judge of the circuit court of the city of St. Louis.At this conference the trial court took judicial notice of the entire file in an earlier case between the same parties which was filed in the circuit court of St. Louis County and the decision in that case of the St. Louis Court of Appeals.Later, the trial court entered its findings and judgment on the issues of law raised in respondents' answer and found in favor of the respondents"on the issues of res adjudicata as alleged in defendants' (respondents') answer."From this judgment the appellant has duly appealed.

On January 17, 1941, the appellant filed his petition in the circuit court of St. Louis County against Ladue Realty & Construction Company, a corporation, and Jamerson C. McCormack.The case went to trial on the third amended petition.It was in two counts.

The first count of the petition alleged that in the spring of 1938the appellant and respondent McCormack entered into an oral contract respecting the purchase and development of tracts of land located in St. Louis County; that by the contract it was agreed that McCormack would undertake the financing necessary for the purchase of the real estate, and for its development, subdivision and sale; that the financing would be accomplished by the formation of a corporation and the sale of its stock to McCormack and certain members of his family; that the corporation would purchase the property, take title in its own name, and take care of all the financing in connection with the development, subdivision, and sale of the property; that appellant would devote all his time to the promotion of the sale of lots and for such services would receive one-half of the net profits earned by the corporation; that pursuant to this agreement McCormack organized the Ladue Realty & Construction Company as outlined above and appellant devoted his entire time and attention to such matters as were necessary in the development, operation and sale of the property as a subdivision; and that the corporation by its conduct accepted appellant's services until August 7, 1940, when he received a letter from the corporation instructing him to remove himself and his personal effects from the property.The petition also alleged that by reason of the breach of the contract, the appellant has been deprived of one-half of the profits he would have been entitled to upon the completion of the development of the subdivision and the sale of the lots and houses thereon.

The second count of the petition was in quantum meruit.It alleged that at the special instance and request of the respondents, appellant rendered services of great benefit to respondents in the development and sale of lots and houses thereon.It further alleged the reasonable value of such services was $ 20,000 and prayed judgment for that sum.

At the first trial appellant abandoned the first count of the petition and had the court instruct only on the second count.The trial resulted in a verdict and judgment against the present respondents for $ 7,033 on the second count of the petition.

This judgment was reversed by the St. Louis Court of Appeals.Its opinion is reported in 237 Mo.App. 971, 180 S.W. 2d 766.That court held that under the evidence of the present appellant that he was not entitled to go to the jury under the second count for the reason that his evidence if true shows "that the parties entered into a partnership or joint enterprise agreement with reference to the development and sale of the property in question.Such being the case, it was improper to submit the case to the jury on the second count of the petition and thus permit a recovery for services rendered."That court said further: "The trial court erred in refusing to direct a verdict for defendants on the second count of the petition.Whether plaintiff should have a verdict in an action brought on a correct theory is not before us.We have accepted plaintiff's testimony as true merely for the purpose of passing upon the sole issue before us, i.e., whether or not the trial court should have directed a verdict on count two of the petition.The judgment is reversed."Loc. cit.S.W. 2d 771-772.

The petition in the present suit is almost identical with count one of the petition in the first suit.As previously stated, the trial court entered a judgment for respondents on the ground that the issues in the present suit had been adjudicated.

The form of action in this suit is different from the form of action submitted to the jury in the first...