Peper Automobile Co. v. St. Louis Union Trust Co.

• Decision Date: 06 June 1916
• Docket Number: No. 14416.,14416.
• Citation: 187 S.W. 109
• Parties: PEPER AUTOMOBILE CO. v. ST. LOUIS UNION TRUST CO.
• Court: Missouri Court of Appeals

187 S.W. 109

PEPER AUTOMOBILE CO. v. ST. LOUIS UNION TRUST CO.

No. 14416.

St. Louis Court of Appeals. Missouri.

June 6, 1916.

Rehearing Denied June 20, 1916.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

"Not to be officially published."

Action by the Peper Automobile Company against the St. Louis Union Trust Company, executor. From a judgment for the plaintiff, defendant appeals. Reversed.

Leahy, Saunders & Barth, of St. Louis, for appellant. Jones, Hocker, Sullivan & Angert and Vincent L. Boisaubin, all of St. Louis, for respondent.

ALLEN, J.

This is an action founded upon a claim filed by respondent, a corporation, in the probate court of the city of St. Louis, against the estate of one Adolphus S. Peper, deceased. The claim, consisting of an account covering the period from May 15, 1907, to July 15, 1909, aggregating $3,350.97, was disallowed by the probate court. Upon plaintiff's appeal to the circuit court and a trial there de novo, before the court and a jury, there was a verdict and judgment for plaintiff in the sum of $4,395.50, being the full amount of the claim with interest, and the case is here on the appeal of the defendant, executor.

Plaintiff corporation was engaged in selling automobiles and automobile parts, accessories, and supplies, and conducted an automobile repair shop. The business was conducted by two young men, Clarence Peper, and Charles Peper, relatives of the deceased, Adolphus Peper, who were owners of the stock of the corporation. The company began business in May, 1907, and Adolphus Peper at once began to deal with it. The account sued upon, which was entered by Clarence Peper in a book kept by him for plaintiff company, begins with an item, under date of May 15, 1907, charging a balance of $300 due from Adolphus Peper on the purchase of an automobile, the purchase price of which was $650. The account then continues with various items for repairs, parts, accessories, gasoline, oil, etc., furnished to Adolphus Peper, and contains a number of items for each month from and including May, 1907, to and including July, 1909.

Plaintiff's evidence is that nothing was paid on the account; that when it had run for some time, and had grown to about $900 or $1,000, plaintiff tried to collect the amount due, but did not succeed; that the owners of plaintiff company — i. e., Clarence Peper and Charles Peper — were prevailed upon by Adolphus Peper, and in part by the latter's brother, Fred Peper, to continue furnishing supplies and rendering services to Adolphus on open account; and that bills were thereafter sent to him, on certain occasions, to which he made no response.

Though the account sued upon extends only to July 15, 1909, it appears that the course of dealing between plaintiff and the deceased, as shown above, continued long after that date. The evidence discloses that plaintiff furnished Adolphus Peper supplies or services, or both, in the months of August, September, November, and December, 1909, and in January, February, March, April, and September, 1910; the amount charged for such supplies and services after July, 1909 — not included in the claim sought to be enforced—being $396.35. Plaintiff's account with Adolphus Peper to and including the month of July, 1909, was kept in the book introduced in evidence below; but the evidence is that this book became filled, and that beginning with the items of August, 1909, the account was continued in a new book which was shown to contain the above-mentioned charges for the period beginning in August, 1909, and ending in September, 1910.

In 1911 Adolphus S. Peper was by the probate court of the city of St. Louis declared to be of unsound mind, and that court appointed Edwin W. Lee, Esq., guardian of his person and curator of his estate. Thereafter plaintiff presented to such curator a claim for $396.35, founded upon the said account of plaintiff with Adolphus Peper, which is said to have accrued subsequent to July, 1909; i. e., beginning August 13, 1909, and ending September 2, 1910. This claim was duly allowed by the probate court, and was paid by the curator to a person to whom it had been assigned.

It developed in plaintiff's case that the above-mentioned claim for $396.35 had been presented by Clarence Peper and Charles Peper, in behalf of the corporation, against the estate of Adolphus Peper then in the hands of his curator, and that it had been duly allowed and paid. The testimony of Clarence Peper and Charles Peper is that the allowed claim was but "a small part of the bill" — "the last part of the bill." And their further testimony (first brought out on cross-examination) is to the effect that the "entire bill" was not presented to the curator for the reason that they had been informed by relatives that the rents derived from the estate of Adolphus Peper, who was then confined in an asylum at considerable expense, "were not sufficient to meet any such obligation as that."

Defendant put in evidence, without objection, the allowed claim for $396.35 above mentioned; and the curator testified respecting its presentation and allowance. It appears that when the claim was presented to the curator he satisfied himself, by an examination of plaintiff's book entries shown him (evidently contained in the "new book" mentioned), and otherwise, that the amount was justly due and consequently waived notice and called upon the claimant to furnish evidence in support thereof. The curator testified that this was the only claim presented to him.

It was also shown that on December 19, 1909, plaintiff company executed a note to Adolphus Peper for $1,200, for money advanced by him to plaintiff company, and pledged two automobiles as security therefor. This unpaid note was found by the curator among the papers of Adolphus Peper within a folded insurance policy. There is considerable testimony in the record concerning the transaction attending the execution thereof, but it need not be here rehearsed.

I. The only assignment of error which we need notice is that pertaining to the ruling of the trial court on the demurrer to the evidence. It is argued for appellant that the court should have peremptorily directed a verdict for defendant, as requested both at the close of plaintiff's case and at the close of the entire case, for the reason that the evidence conclusively shows that plaintiff split its original account which, it is said, was an entire, indivisible claim, by presenting the claim for $396.35 and causing it to be allowed against the estate of Adolphus Peper, non compos mentis; that such allowance of part of the entire account of plaintiff against Adolphus Peper operates to preclude a recovery on so much thereof as is involved in this action.

It is well settled that a single demand cannot be split and separate suits maintained for various parts thereof. Where the demand is essentially an entirety, but one action may be predicated upon it. Wagner v. Jacoby, 26 Mo. 532; Union, etc., Co. v. Traube, 59 Mo. 355; Wheeler Savings Bank v. Tracey, 141 Mo. 252, 42 S. W. 946, 64 Am. St. Rep. 505; Donnell v. Wright, 147 Mo. 639, 49 S. W. 874; Bircher v. Boemler, 204 Mo. 554, 103 S. W. 40; Rundelman v. Boiler Works Co., 178 Mo. App. loc. cit. 650, 651, 161 S. W. 609. And if a judgment is obtained upon a portion of a demand of such character, the right of action is gone as to the residue thereof not embraced within the judgment. The judgment will conclude the rights of the parties with respect to the cause of action arising upon the entire demand, whether the judgment in fact includes the whole or only a part thereof, in accordance with the maxim, nemo debet bis vexari pro eadem causa. See Union, etc., Co. v. Traube, supra; Hoffmann v. Hoffmann's Executor, 126 Mo. 486, 29 S. W. 603; Puckett v. Annuity Ass'n, 134 Mo. App. 501, 114 S. W. 1039; Rundelman v. Boiler Works Co., supra. While there is no conflict of authority as to the general rule against splitting a single cause of action, some difficulty is frequently encountered in determining whether a demand is single and entire, constituting but one cause of action, or arises out of two or more separate and distinct causes of action. It is said that:

"The true distinction between demands or rights of action which are single and entire, and those which are several and distinct is, that the former immediately arise out of one and the same act or contract and the latter out of different acts or contracts." Alkire Grocer Co. v. Tagart, 60 Mo. App. loc. cit. 393.

"When there is an account for goods sold, or labor performed, where money has been lent to, or paid for, the use of a party at different times, or several items of claim spring in any way from contract, whether one only or separate rights of action exists, will, in each case, depend upon whether the case is covered by one or separate contracts. The several items may have their origin in one contract, as on an agreement to sell and deliver goods, or perform work, or advance money; and usually in the case of a running account it may be fairly implied that in pursuance of an agreement an account may be opened and continued either for a definite period or at the pleasure of both the parties. But there must be either an express contract, or the circumstances must be such as to raise an implied contract embracing all the items to make them, when they arise at different times, a single...